Penal Code 240
What Counts as Assault in California?
The word “assault” as a legal term can cause some confusion because different jurisdictions might use it in different ways to describe different things. For example, some jurisdictions might use “battery” to describe a physical attack on someone and “assault” to describe threatening conduct that does not necessarily amount to physical touching. This might be why we sometimes hear of “assault and battery” used together, especially in legal or law enforcement-themed TV and movies. Still, some jurisdictions might use “assault” to describe physical attacks that would count as “battery” in other places. In California, the state Penal Code defines “assault” for the purposes of criminal cases here.
Section 240 of the Penal Code (“PC 240”) sets out the elements of Assault under California law. To prove someone guilty of Assault, the prosecution has to prove beyond a reasonable doubt that:
- 1-The defendant unlawfully committed an act which tends to probably and directly result in the application of force to another person,
- 2-The defendant did, in fact, have the ability to inflict a violent injury on another person
This means that, at a jury trial, if the jury hears all of the evidence and has any reasonable doubt that the defendant committed an unlawful act, or that the act tended to inflict force on another person, or that the defendant had any ability to cause injury to anyone, then the defendant would be found “not guilty” on the charge of assault.
Application of force does not have to be “skin-on-skin.” A person can apply force to another person, or threaten it, by shooting a gun or hurling a rock towards the victim.
Notice that injury to another person is not an element of Assault under PC 240; the prosecution does not have to prove that the defendant caused any physical harm or injury to another person. So long as the defendant did something that, by its nature, would tend to inflict force on another person, and the defendant did, in fact, have the power to do so at the time, then he would be guilty of assault. A defendant who throws several punches at someone’s face, but misses each time, is probably guilty of assault.
Finally, note that the prosecution does not need to prove that the defendant planned or intended to hurt anyone in an assault case. All the prosecution needs to prove is that the defendant intended some action, and that action itself naturally tended to apply force to another person.
Defenses to an
Assault Charge in California
Defenses to Assault have a lot in common with defenses to Battery under California law. Like in many criminal cases, the defense could respond to an assault charge by showing that the alleged crime never occurred, or that if it did, the defendant did not do it. The defense could argue that no one ever used force or violence on the alleged victim and that they are just making their whole story up. Or, the defense could argue that even if someone did commit an assault against the victim, it was not the defendant and so the witnesses are mistaken about who committed the crime, or perhaps they are lying about the defendant’s role in the crime as part of a more complicated series of events. A well-prepared defense attorney should be willing to explore all areas of the prosecution’s evidence, as well as any possible defense evidence, to argue how or why the evidence against the defendant is not credible.
Other possible defenses to an assault charge are interwoven with the elements explained above. One example is self-defense. Any force or violence used must be “unlawful” in order to count as assault, and it is lawful to use force or violence in self-defense in California. If the defense successfully argues that the defendant reasonably believed that defendant only threatened force against the alleged victim to prevent imminent bodily harm to themselves, and the force used was a proportionate response under the circumstances, then the defendant should be found “not guilty” of assault.
Please note that, in a “self-defense” case, the defendant does not necessarily have to show that the alleged victim was, in fact, threatening the defendant or that they would have harmed the defendant if given a chance. Rather, the defendant need only show that they “reasonably believed” that the alleged victim was threatening them and that the force used was needed in order to stop it. Also, the defense does not have to put forward any evidence in its own “side” of the case to succeed on a self-defense claim. Instead, they can show or suggest a self-defense claim through the physical evidence or witnesses that the prosecution puts forward. And furthermore, is the burden of the prosecution to disprove self-defense beyond a reasonable doubt once the defense raises it at trial. So, if a jury hears all of the evidence, and they have any reasonable doubt that the defendant might have in fact been acting in self-defense, then they would find that defendant “not guilty” of assault.
“Defense of others” is another possible defense to an assault charge in California. This is the same as self-defense, only the defendant uses force to protect others, not themselves. Like self-defense, force used in defense of others is a lawful use of force in California and so will not count as an assault.
How Can You Be
Convicted of Assault in California?
Assault, in its most basic form, is a misdemeanor in California and is punishable by a period of 0-180 days in jail. However, Section 241 of the Penal Code (“PC 241”) defines other, more serious forms of assault against some types of public servants, professionals, and jurors. Even as misdemeanors, these types of assault can be punished by a period of 0 days-1 year in prison. Assault against some types of law enforcement officers is a felony and is punishable by a period of 16 months, 2 years, or 3 years in prison. However, these more serious penalties do not apply if the defendant had no reason to know that the victim was any one of these types of public servants.