Everything You Need To Know About Misdemeanor Assault Laws

In this guide, I will provide everything you need to know about misdemeanor assault charges under penal code 240 pc.

Let’s get started…

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).

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.

Penalty	Misdemeanor
Fine	Not to exceed $1,000
County Jail	Up to 6 months

Legal Defenses To Assault

There are various defenses that can be asserted on your behalf to fight a charge of assault.  Here are the most common ones:

Inability to Carry Out the Threat of Harm:

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.

Self-Defense/Defense of Others:

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.

Lack of Intent

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.

Falsely Accused/Mistaken Identity

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.

Voluntary Intoxication Is Not A Defense

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.

1. Penal Code, § 240. – An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. [↩]
2. Penal Code, § 240. [↩]
3. Penal Code section 240. [↩]
4. 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. [↩]
5. 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]. [↩]
6. 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. [↩]