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Assault - Penal Code 240

Assault is a common offense and can consist of a simple push or shove or the use of physical force. You do not need to have caused any injury to be charged. Another name for this offense is Simple Assault. The crime of assault is found under California Penal Code Section 240:

240. An assault is an unlawful attempt, coupled with a presentability, to commit a violent injury on the person of another.

Essentially, it is the following:

  • Willful performance of an act
  • That is likely to result in the application of force to another, and
  • You were presently aware that your act would likely result in the application of force, and,
  • You had the present ability to cause the application of that force

In other words, the prosecution need only demonstrate that you attempted to inflict harm though you need not have had any physical contact with the intended victim.

Willful Performance of an Act

The term, "Willful," implies an intentional and knowing act and not something done by accident. Merely throwing an object that could inflict harm on someone, even if you missed hitting them, is enough to show willful performance to commit an act that could have inflicted injury.

Application of Force

Any unwanted touching or physical contact that was not consented to, if done in an angry or offensive manner, satisfies the element of resulting in the application of force. Playfully shoving someone is not angry or offensive contact, no matter if the person did not like or consent to it.

Spitting on someone is offensive if done deliberately as is taking a swing at someone but missing them. These acts were done in anger with the missed punch an act that would have likely resulted in some injury.

Awareness of the Consequences of Your Act

You must also have had the present awareness that your intentional act would likely lead to an injury or harm to someone. Accidental acts are not included. Firing a gun off a porch in your city apartment could likely lead to injury. If done at a firing range and a ricocheted bullet strikes someone is only an accident.

Penalties for Assault

Simple assault is a misdemeanor. You face any of the following potential sentences:

  • Summary probation for up to 3 years
  • County jail time of up to 6 months
  • A fine not to exceed $1,000
  • Participation and completion of a batterer’s program
  • Community service

First-time offenders whose acts did not result in serious harm may only receive probation and a suspended sentence, though they may have to perform community service along with attending a court-approved program for anger management or for batterers if a domestic partner was the victim.

Defenses to Assault

  • No present ability to carry out the assault

If you threaten to shoot someone but do not have a gun, you lack the present ability to carry out your threat or to commit an injury. You can still be charged with making a criminal threat, however.

  • Self-defense or of Others

Under California law, if you reasonably and honestly believe that you could be seriously hurt by another person who has attacked you, a friend or family member, you may fight back so long as you use reasonable force. You must also stop your counterattack once the threat is over.

Use of a firearm or deadly weapon may be unreasonable force depending on the facts of your case.

  • Lack of intent

You must have intended to commit an injury on another person. Merely threatening to shoot someone or to stab them without having the weapon in your possession shows lack of intent to assault someone under PC 240, though you can still be charged with another crime.

Retain a California Criminal Defense Attorney

Assault is a violent crime and a conviction can lead to unwanted consequences in your life, even if it is a misdemeanor offense. If you are charged with assault, consult with a California assault or criminal defense lawyer who can advise you regarding your rights and defenses.