ASSAULT (Penal Code Sections 240 and 245)

People often confuse the terms assault and battery. However, unlike battery, an assault does not require any physical contact. An Orange County assault defense lawyer can further explain the difference between these crimes.

The statutory definition of an assault is very simple: It is the "unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." In other words, assault requires only that someone acts in a way that could result in the application of force upon another person.

"Application of force" requires only the slightest touch, either directly or indirectly as long as it is done in a harmful or offensive manner. Thus, for example, poking your finger at someone's chest could be an assault. Assault does not require that the touching cause pain or injury of any kind. In fact, since assault only requires the attempt, no actual touching is even required to complete the commission of this crime. Let's say you shake a stick at someone in a menacing manner, this could be construed as an assault as long as you had the ability to use the stick to touch the person you are shaking it at, even though you did not touch that person with the stick at all.

Assault can be either "simple" or "aggravated."

Simple assault (Penal Code §240) is usually charged when the person assaulted is not significantly injured and when the person doing the assaulting did not use any kind of weapon. Say, for example, two guys are playing a game of one-on-one basketball and one guy gets angry at the other. In his anger, he throws the basketball at his opponent; the ball doesn't hit its intended target, but the act is still a simple assault

An aggravated assault (Penal Code §245) occurs when a deadly weapon or any other deadly force is used. Thus an aggravated assault may be charged not only when weapons such as guns or knives are used but by any use of force (including fists and feet) that could cause great bodily injury (significant or substantial physical injury). The actual injury need not occur; the crime is committed when the assault would have likely cause great bodily injury if it had been completed. For example, kicking someone in the stomach could be charged as an aggravated assault even if no injury occurred because a kick to the stomach has the potential to cause significant bodily injury.

Assault can be a very serious charge and anyone charged with this crime should consult immediately with an experienced criminal defense attorney. Depending upon the circumstances of the alleged crime, an experienced attorney can often get the charges dismissed or secure a conviction on a lesser crime. Often the prosecution will charge aggravated assault when simple assault is more appropriate. An experienced assault defense attorney in Orange County understands and knows how to get the charge reduced.

I am an experienced criminal defense attorney with proven results and I promise to vigorously defend your rights under the law. I have successfully defended hundreds of clients, including those charged with assault. Contact me at any time to set up a confidential consultation with an Orange County assault defense attorney without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.


Simple Assault is a misdemeanor punishable by a fine of up to $1,000 and/or a term of up to six months in county jail. Probation is often granted instead of incarceration. Statute provides for a higher fine of $2,000 and in some cases, a term of up to one year in county jail when the assault is committed against a person performing an official public function such as a parking control officer, a paramedic, and firefighter and so on.

Aggravated assault is a "wobbler," meaning that it may be prosecuted as a misdemeanor or a felony depending upon the circumstances of the crime. If prosecuted as a misdemeanor, the punishment is up to one year in county jail and/or a fine of up to $10,000. When prosecuted as a felony, the potential is for two, three, or four years imprisonment in the state prison. However, if certain weapons are used or certain persons are assaulted, the crime is always a felony and the punishment is more severe. If the crime is committed with an assault weapon, the punishment is 4, 8, or 12 years imprisonment in the state prison; if a semiautomatic firearm is used the punishment is three, six, or nine years imprisonment in the state prison; and if the crime is committed against firefighters or police officers, the punishment may be up to 12 years imprisonment in the state prison. Retaining an assault defense lawyer in Orange County is important to protect your rights.

California Criminal Defense Lawyer Blog - Assault or Battery