Assault (Penal Code Sections 240 and 245)

People often confuse the terms assault and battery. Unlike battery, an assault does not require any actual physical contact. Furthermore, an assault only requires that an act could have resulted in an injury and as you will see, an "injury" is not what you think it is.

Assault, according to the California Penal Code is the "unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Penal Code §240.) Although this implies that there must be an injury or that the act could have caused an injury, this is not the case. A "violent injury" is interpreted to mean an "application of force." Assault requires only that someone acts in a way that did result, or could have resulted, 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 ("present ability"), no actual touching is 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; even if the ball doesn't hit its intended target, 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 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.

The Elements of Assault

Assault requires that the act be accomplished willfully, but there is no requirement that the person who committed the assault intended to break the law or to use force against the victim. For example, although it is unlikely, the simple act of intentionally spitting at a person could be charged as a simple assault. Now, this is admittedly a rather disgusting example, but it gets across the point. It may be that the "spitter" had no intention to break the law or hurt the person he spit on (or at), but because spitting on someone can be considered an application of force, i.e, making contact with another person in an offensive manner, it qualifies as a simple assault. But if the person spitting made the gesture by spitting at someone's feet at a distance far enough that there is no chance the spit would land on the victim's feet, it would probably not be an assault. Why? Because the spit did not touch the victim and did not have the potential to touch the victim.

Similarly, an aggravated assault requires the same elements but the only difference is that a deadly weapon was used. So, to take the spitting example one step further into aggravated assault territory: A person puts up his fists as if he was going to punch the victim. He makes a few air jabs close to the victim's body and one jab actually brushes the victim's cheek although no injury occurred. Because a fist blow to a person's face can cause a significant injury, this may be charged as an aggravated assault. In fact, it could still be charged as an aggravated assault even if a fist didn't actually touch the victim-but could have. However, if the fist jabs are made at a distance and had no chance of touching the victim, there is no assault.


While intent to break the law and an actual injury are not defenses, there are several viable defenses to an assault charge, whether simple or aggravated:

  • An act in self-defense or to defend another is a defense to assault.
  • If the alleged act could not have actually caused an application of force to another, the act is not an assault. The examples above of spitting at someone's feet but at a distance where the spit could not have touched the other person, or air jabs that occur at a distance that had no chance of hitting another person are examples of this defense.
  • If a person did not willfully act in a way that he or she should have known could cause injury to another, it is not an assault. For example, if you trip a person on purpose, it is an assault, but if you tripped the person completely by accident, you have a defense against an assault charge.

It happens on occasion that a person will be charged with an assault even though the act was in self-defense, not capable of causing an application of force, or accidental. Orange County assault defense attorney, William Weinberg, will thoroughly review the facts of your matter for any of these potential defenses.


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 2, 3, or 4 years imprisonment in 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 assault involved a semiautomatic weapon, the crime carries a potential sentence in state prison for 3, 6, or 9 years. The use of certain weapons, such as a machine gun or .50 MG rifle, increases the punishment to 4, 8, or 12 years imprisonment in the state prison. Furthermore, if the crime is committed against firefighters or police officers, the punishment may be up to 12 years imprisonment in the state prison.

Orange County Assault Defense Attorney William Weinberg Can Help.

Assault can be a very serious charge. Anyone charged with this crime should consult an experienced criminal defense attorney. Depending upon the circumstances of the alleged crime, an experienced assault defense attorney may be able to get the charges dismissed, secure a conviction on a lesser crime, or negotiate for a lenient sentence. Orange County assault defense attorney William Weinberg has many years of experience defending assault charges and he has achieved many successful outcomes for his clients accused of assault. He has proven results and promises to vigorously defend your rights under the law. Contact him at any time to set up a confidential consultation without charge.

California Criminal Defense Lawyer Blog - Assault or Battery
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