According to California law, PC 240 (assault) is any unlawful attempt accompanied by a present ability to inflict a violent injury on someone else. People often use the terms assault & battery, but the two terms represent two distinct crimes. A battery is the use of unlawful force against another person, while assault is the application of unlawful force against another person. The potential charges for an assault conviction include fines, probation, and jail time. If you face assault charges in Pasadena, CA, attorney Ann Gottesman can investigate whether you have a defense to the charges and whether the prosecutor has sufficient evidence to prove their case.

Elements of Assault

The California PC 240 sets out the different elements of assault. Elements refer to the various factors that the prosecutor needs to prove in order for you to be convicted of the offense of assault. The elements of the crime are:

  • You engaged in an act, which by its nature would likely have led to an application of force on someone else.
  • You engaged in that act intentionally
  • At the time you engaged in the act, you knew that your actions could make any reasonable individual believe that the act would likely and directly result in an application of force on the person
  • You had a present ability to apply force on the said person when you engaged in the act

Below is a detailed explanation of what every element means:

Application of Force

Any harmful or offensive touching qualifies as an application of force. Even the slightest touch qualifies as an application of force as long as you do it in an offensive or rude manner. Even if the type of touch did not result and could not have resulted in an injury, it still qualifies as an application of force. The touch does not need to be direct to qualify as an application of force. You can face assault charges even if you use an object to touch the victim. For example, you may be engaged in an argument with a colleague, and you spit on their face in the moment of anger.  There is no chance of injuring your colleague with the spit. However, this act could still count as an assault under California law because you did it offensively.

The law doesn’t need you to have actually applied force on the victim for you to face the charges. You will face charges if it is evident that you engaged in an act that would likely have led to an application of force on the victim. For example, you might have thrown an object such as a plate or utensil at your spouse during a bad argument, but the object did not strike your spouse because of the distance between you. However, you might still face assault charges because it is likely that the object would have hit on the victim.

Acting Intentionally or Willfully

If you do something intentionally or on purpose, you are acting willfully. Acting willfully doesn’t mean you had an intent to break the law, or hurt anyone. Acting willfully means that you committed the act on purpose even if you did not intend to harm the other person.

For example, two neighbors, Bob and Sam are engaged in a disagreement about property lines and Bob takes out a gun and points it at a tree that is a few feet from where Sam is standing.  In an attempt to scare Sam, Bob fires the gun at the tree and a bullet hits the tree. Even though Bob had no intention of shooting his neighbor Sam and Sam was never injured, Bob acted willfully by taking out the gun and firing it.  

Your Action is Likely to Result in an Application of Force

You don’t need to have purposely used force against the victim to face assault charges. The prosecutor only needs to prove that you knew that your acts would likely lead to a force being applied.

In the example above, Bob would be charged with assault with a deadly weapon because it was likely that shooting the gun at a target that was only a few feet away from Sam was likely to result in an application of force upon him.  

Distinguishing Between Assault and Battery

Many people find it confusing to distinguish between assault and battery because they assume that the two terms mean the same thing. California battery and California assault are two different crimes. The primary difference between the crimes is:

  • Assault, as outlined by California PC 240, is any action that may inflict unwanted touching or physical harm on another person
  • Battery, as outlined by the California PC 242, is the actual infliction of violence or force on another person.

In simpler terms, assault does not involve physical contact between the victim and the defendant, but the battery does. A battery is basically an assault that resulted in an offensive touching.

The Punishment for Violating PC 240

What penalties will you face for committing an assault crime in California? The offense of simple battery is a misdemeanor. The potential consequences for the crime are:

  • Serving a summary or misdemeanor probationary period
  • A jail time of up to six months in a county jail
  • A fine that doesn’t exceed $1,000

Summary or Misdemeanor Probation

Informal or misdemeanor probation is alternative sentencing to jail time in which you will be supervised directly by the judge instead of reporting to the probation officer.

Remember that probation only happens if you are convicted of a criminal offense.  If you are acquitted by a jury trial or court trial, or are able to avoid a conviction through some other means, you will not be on probation. 

While on misdemeanor probation, you may be instructed to return to court periodically for progress reports to show that you comply with all the terms of probation. If you have a privately retained attorney, the attorney can appear for you in court.

Typically, misdemeanor probation lasts for up to one year. While on misdemeanor probation, you will have to abide by several conditions of probation. The typical requirements of probation are:

  • Performing community labor
  • Paying restitution
  • Attending counseling

If you fail to adhere to all the probation terms, you may be guilty of a misdemeanor probation violation. The court might decide to give you a warning and reinstate the probation. The court might also decide to modify the probation terms and inflict stricter terms. In some instances, the judge may revoke your probation and recommend a jail time of not more than the maximum sentence.

The role of the misdemeanor probation is to:

  • Restore the victim
  • Rehabilitate the offender
  • Protect the public

The court mainly grants probation to first-time and even second time offenders. However, even repeat offenders may be eligible for misdemeanor probation. Whether the court recommends probation or jail time depends on the judge’s discretion. If you have a skilled criminal defense attorney, your lawyer will want to provide a mitigation packet or sentencing memorandum to show why you should get a lenient sentence after being convicted.  In cases where there is a negotiated plea, your attorney and the prosecutor may agree on probation and specific terms in lieu of jail time.  At other times, the judge will recommend probation during the sentencing.

Assaulting an Emergency Personnel or a Law Enforcement Officer

You will face higher penalties if you assault a law enforcement officer or emergency personnel. You will face the aggravated charges as long as you assault the emergency personnel or the law enforcement officer when they are engaged in the performance of their official duties. These protected persons include:

  • Firefighters
  • Police or other law enforcement officers
  • Lifeguard
  • Emergency medical technician commonly abbreviated as EMT or a paramedic
  • Traffic officer
  • Process server
  • Animal control officer
  • Code enforcement officer
  • Search and rescue member
  • A nurse or a doctor providing emergency medical care

If you assault someone who falls under any of these categories, you will face a potential jail time of up to one year. The potential maximum fine will also increase to up to $2,000. The prosecutor will have to prove that you knew or you should have known that the victim was a peace officer when you committed the offense.

If you attack a parking control officer who is engaged in the performance of his or her duties, the potential penalty will increase to $2,000. Parking control officers are a common target of assault.

An Assault Victim Can File a Civil Lawsuit

The victim of assault can sue you for damages like medical bills and lost wages. You do not need to be found guilty of the offense during a criminal trial for the civil charges to apply. You do not even need to have been charged with the crime. The victim could file a civil lawsuit even if you were found “not guilty” during the criminal proceedings. Unlike in a criminal offense where the prosecutor needs to prove beyond reasonable doubt that you committed the crime, this requirement does not apply in civil lawsuits. In a civil trial, what matters is the preponderance of the evidence. This means that you can face civil charges if the jury thinks that, more likely than not, you assaulted the victim. The plaintiff has the burden of proving by a preponderance of evidence that:

  • The defendant owed the plaintiff a duty of care
  • The defendant violated this duty of care through recklessness, negligence, or an intentional wrongful act
  • The plaintiff suffered damages as a result of the breach

You can fight civil charges with the same defenses applied for criminal charges.

Typical Defenses for Assault Charges

An assault conviction on one’s record is a difficult burden to carry.  It can effect one’s employment goals and interfere with a person’s career and reputation.  With the help of a skilled criminal attorney, you may be able to fight assault charges by employing any of these defenses discussed below.  Also, keep in mind that everyone in California is protected by the California Constitution and the US Constitution.  That means that the prosecutor has the burden to prove you are guilty—the accused does not have to present a defense.  Of course, it is prudent to present a defense but it is not the burden of a defendant to prove his or her innocence.

Possible Defenses to Assault Charges

  1. No Present or current ability to inflict Violence or Force

An essential element of assault is that you must have had a present or current ability to inflict force on the victim when you committed the crime. You can’t face assault charges if you did not have a present or current ability to inflict force on the victim.

  1. You Were Defending Yourself or Another Person

You can fight assault charges by stating that you were merely acting in self-defense or another person’s defense. For this defense to be viable, one or all of the following facts must be true:

  • When you committed the crime, you must have had a reasonable belief that you or another person was in imminent danger of unlawful touching or suffering a significant bodily injury.
  • It should be evident that you reasonably believed that the use of force was necessary to defend yourself or someone else against the danger.
  • You didn’t use force that was excessive to defend against that danger.

  1. You Did Not Have a Criminal Intent

You cannot be guilty under PC 240 if you did not intentionally attempt to use force against another person. You can fight assault charges by pointing out that your acts were accidental or that you acted out of a misunderstanding. A lawyer can assist you in exploring this possible defense.

  1. A Victim of False Accusations

Another person may accuse you of assault, yet you did not commit the crime. The California assault law does not need a victim to suffer visible bruises for the charges to apply. It is easy for another person to accuse you of the crime falsely.  Sometimes, angry divorces, custody battles and relationship breakups result in one person becoming angry and vengeful enough to lie to the police.   

Crimes Often Charged Alongside Assault

You might face charges for the following offenses in addition or instead of assault charges:

Battery Under California PC 242

The offense of battery under PC 242 is different from assault because it requires the defendant to use force against the victim. However, the same way as with California assault, you can face battery charges even if you don’t inflict actual injuries on the victim. The prosecutor will only need to prove that you succeeded in touching the victim rudely or offensively. The offense of battery is a misdemeanor punishable with a jail time not exceeding six months. The court might also impose hefty fines not exceeding $2,000. If injuries exist, depending upon the severity, felony charges of assault could ensue with a great bodily injury enhancement added.

If you cause extensive injuries to the victim, you might face charges under PC 242 (d) for battery causing significant bodily harm. Also known as aggravated battery, battery causing serious bodily injury is a more severe crime than simple battery. You may violate PC 243 (d) if you strike another person in an offensive or harmful manner, likely to cause significant bodily injury. The offense of aggravated battery is a wobbler, meaning that it can attract misdemeanor or felony charges.   When charged as a misdemeanor, the penalties include a jail time of up to one year in jail. The court could order you to pay a hefty fine not exceeding $1,000. If charged as a felony, the penalties for aggravated battery include a jail time of two, three, or four years. You may also have to pay a fine not exceeding $10,000.

Assault with a Deadly Weapon

The California PC 245 defines the offense of assault using a deadly weapon. You might violate PC 245 if you attack or attempt to attack another person with a deadly weapon or any other means that can inflict significant bodily injury. The prosecutor will have to prove several elements of the crime:

  • The prosecutor has to prove that you performed an act which by nature could have probably led to a direct application of force on another person
  • It must be evident that you committed the act using a lethal weapon or you committed an act with force that is likely to cause a great bodily injury.
  • You must have performed the said act intentionally (willfully)
  • When you acted, you knew that your actions would cause a reasonable person to believe that such actions would probably lead to a direct application of force upon him or her, AND
  • When you committed the act, you had the present ability to inflict force that is likely to produce great bodily harm or you had a present ability to inflict harm with a lethal weapon. (See jury instruction in Calcrim 875.)

You should note that the victim of an assault using a deadly weapon does not have to sustain injuries for you to face the charges.

With the help of your attorney, you can fight charges of assault using a deadly weapon by showing that:

  • You did not use a deadly weapon
  • You were acting in self-defense or defense of another person
  • You did not act intentionally
  • The prosecution has insufficient evidence to prove one or more elements of the crime beyond a reasonable doubt

Brandishing a Weapon or Firearm- Penal Code Section 417

Under California Penal Code section 417, it is illegal to exhibit or draw a deadly weapon or a firearm in front of another person in an angry, rude, or threatening way.  This is referred to as “brandishing” a weapon.  This crime is typically filed as a misdemeanor and can result in up to one year in jail and a fine up to $1000.

If you are charged with brandishing under PC 417, the elements of the crime that the prosecution must prove includes the following:

  • You exhibited or drew a weapon or firearm in front of another person,
  • You drew or exhibited the weapon in an angry, rude or threatening way,
  • Or you used the weapon (or firearm) during a fight (even if you did not hurt anyone with it),
  • And the act was not done in self-defense.

For an object to qualify as a “deadly weapon” it must be inherently deadly or is capable of causing and likely to cause GBI or death.   (See Jury Instruction in Calcrim 983.)

Disturbing the Peace

The California PC 415 outlines the offense of disturbing the peace. This crime involves getting into a fight with another person, playing extremely loud music, or engaging in offensive language, or fighting words. For the prosecutor to charge you with unlawful fighting under PC 415 (1), they will have to prove that:

  • You unlawfully and intentionally fought another person or challenged another person into a fight
  • The fight or the challenge to fight happened in a public place

However, you can’t face charges under this statute if you prove that you acted in self-defense.

The prosecutor can also charge you under PC 415 (2) for causing unreasonable noise. In this case, the prosecutor will have to prove that:

  • You maliciously and intentionally caused louse noise
  • The noise disturbed another person

Acting maliciously means that you intended to do something that was wrong. It also means that you intended to injure another person or to annoy them.

Under PC 451 (3), the prosecutor may charge you with using offensive words in public. For the prosecutor to charge you under this statute, it must be evident that:

  • You used offensive words that were likely to cause a violent reaction
  • You used offensive words in public

Assault on a Public Official

The California PC 217.1 outlines the offense of assault on a public official. Assaulting a public official is a form of aggravated assault. Some of the elements of the crime that the prosecutor will have to prove are:

  • You committed a crime of assault
  • You committed the assault on a public official or someone who is a member of the public official’s immediate family
  • You committed the crime to prevent the victim from performing his or her official duties or concerning this motive.

You do not have to succeed in assaulting the public official for you to face the charges. You will face the charges as long as you had a present ability to assault the victim when you committed the offense. The penalties for assault on a public official include:

  • A summary or misdemeanor probation
  • A jail time of up to one year in a county jail
  • A fine that does not exceed $1,000

If charged as a felony, the penalties are:

  • Formal or felony probation
  • A jail time of sixteen months, two years, or three years in county jail, according to California’s realignment program
  • A fine that does not exceed $10,000

Call Attorney Ann Gottesman to Discuss your Criminal Case

If you or a loved one faces assault or related criminal charges, contacting a criminal attorney immediately increases the chances of getting a favorable outcome for your case.   It is also important to speak with a lawyer who is familiar with the courthouse and prosecutors that will be handling your case.  Attorney Ann Gottesman passionately defends her clients in Pasadena and surrounding Los Angeles courts.  Ann will listen to your story and provide you with the advice and help you need.  Call her office in Pasadena, California at 626-710-4021.