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The California Penal Code section 240 defines “assault” as an unlawful attempt, coupled with a present ability, to commit a violent injury to another.1
An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment2. However, there is a variety of legal defenses that can be asserted to fight an “assault” charge, including but not limited to “lack of intent,” “inability to carry out the threat of injury,” and “self defense/defense of others,” among others.
Who Can Be Charged With Assault Under PC 240?
A defendant can only be charged with assault if he/she had the present ability to carry out his/her threat of harm to another person. Moreover, the defendant’s act was willful, meaning the defendant intended to carry out the act. Any touching may qualify, no matter how slight, whether it was direct or indirect (i.e. touching that occurred when defendant used another instrument, or another person).
John, a homeless man, was looking for someone to give him either food or money to buy food.
When he saw a woman pull up in her car, he asked her for food or money, but she refused to offer him either one.
Frustrated and angered by the woman’s refusal to offer him any help, the man wanted to throw his shoe at her.
He took off his torn up shoe and swung it in the air as if he was going to throw it at the woman.
The shoe was falling apart and as the man swung it back and forth once, the shoe soul came off and hit the woman in the face.
Scared that the man is going to throw the rest of the shoe at her and possibly attack her, the woman screamed and ran towards the park.
John can be charged with assault because he intended to harm the woman with his shoe.
Even though the only contact occurred was with his shoe soul, such slight contact qualifies for an assault charge.
How Does The Prosecutor Prove Assault Under PC 240?
To prove that the defendant is guilty of assault under PC 240, the prosecution must prove the following facts or elements:3.
- The defendant did an act that by its nature would directly and probably result in the application of force to a person, that would likely cause great bodily injury4
- The defendant’s act was willful5
- When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone;
- When the defendant acted, he/she had the present ability to apply force likely to cause harm to another person.
Penalties For Assault
The following punsishment can be imposed under Penal Code 240 for simple assault. Assault for special persons including peace officers may have different fines and or maximum imprisonment length.
|Fine||Not to exceed $1,000|
|County Jail||Up to 6 months|
Legal Defenses To Assault
One of the elements of assault is that the defendant has a present ability to apply force likely to cause harm to another person. Therefore, if the defendant does not have this ability, he/she cannot be charged with an assault.
A woman who claims to have a weapon, but in reality does not have one, cannot be charged with assault based on the threatened harm using the non-existing weapon.
If the defendant committed an act that is likely to result in harm to another is because he/she acted in self-defense or defense of others, he/she has a valid defense agaisnst assault charges. To assert this defense, the defendant has to have a reasonable belief that he/she or another person is likely to be physically harmed and is justified in using force that is proportionate to the threatened force to repel the attack6.
If you did not “willfully” intend to commit the act that injured another person, you may use this as a defense provided there is evidence.
James walked into a liquor store with his hand in his pocket.
He told the store owner to empty out the register into a bag or he will shoot him in the face.
In reality, James did not have a gun.
Because he did not have a gun, he did not intend to shoot the store owner.
Therefore, he cannot be convicted of assault.
If you were falsely accused of committing an assault, you need a good attorney who can find any inconsistencies in the evidence to show that you were not the perpetrator of the crime. The Aizman Law Firm was founded by a former prosecutor who knows how to investigate such cases and to provide the best defense possible. If you were falsely accused and need help getting out of the situation, do not hesitate to give us a call.
This is not a defense to assault: In California, a defendant who commits an assault while intoxicated cannot claim voluntary intoxication as a defense. The reasoning behind the law is that defendants know (or should know) that alcohol and drugs affect mental functioning, and holds them legally responsible if they commit crimes as a result of their voluntary use. However, if a defendant can show that he/she was involuntarily intoxicated, the defendant will not be found guilty of the assault because he/she did not choose to consume the intoxicating substance.
A man walked up to a woman in public and swung at her with an umbrella.
The woman, fearing for her safety, punched the man in the face.
The man is guilty of assault, because he intended to swing the umbrella at the woman, knowing that if the umbrella actually hit the woman, it would likely result in a bodily injury to her.
However, the woman did not commit an assault or battery because she rightfully acted in self-defense.
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- Penal Code, § 240. – An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.
- Penal Code, § 240.
- Penal Code section 240.
- The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object, or someone else, to touch the other person.
- Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. The prosecution is not required to prove that the defendant actually intended to use force against someone when he/she acted or to injure the other person. Willful Deﬁned. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,107 [51 Cal.Rptr.2d 402].
- If there is sufficient evidence of self-defense or defense of another, the court has a sua sponte duty to instruct on the defense. See CALCRIM Nos. 3470–3477.