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Assault in California Under PC 240

The repercussions that an assault conviction in California can have on your professional and personal life are serious.  You will not only have a criminal record, but you will also be at risk of being jailed or imprisoned. When the consequences of a conviction are grim, you need an effective criminal defense attorney. Assault is often charged with battery, which is a much more severe crime with harsher penalties.

With the devastating ramifications of an assault conviction, you need robust legal representation. Criminal attorney Long Beach Criminal Lawyer has experience both as a criminal attorney, and prosecutor to stage an aggressive defense that can result in immediate dismissal of the charge; an amendment to your assault charge; a non-guilty verdict or a deferred prosecution that results in a dismissal.  If you are charged with assault, for expert legal representation call our offices at 562-304-5121 to arrange for legal consultation.

What is Assault according to California law?

Under California Penal Code 240; the legal definition of assault has not changed since it was initially enacted in 1872. It is defined as “an unlawful attempt coupled with a present ability, to commit a violent injury on the person of another".

Example of Assault

John is at a bar and he walks up to Mark.  John pulls back his fist and looks like he is about to punch Mark.  Mark thinks John is about to punch him and ducks down.  John does not touch Mark and walks away.  John has committed an assault even though he never touched Mark.

Example of Battery

John is at a bar and he walks up to Mark.  John pulls back his fist and Mark tries to duck down as he sees John getting ready to punch him.  John punches Mark in the side of the head.  John has committed both an assault and a battery.

Many people use the terms assault and battery interchangeably.  Though related, these are two  separate and distinct offenses that are punishable separately under the law. A battery cannot be committed without an assault, while an assault can be committed without resulting in battery.

What’s the difference between Assault and Battery under the penal code?

Under PC 240 assault mainly comprises of the actions one takes leading to a battery. For instance, the act of pointing a gun at someone you are arguing with is charged as an assault in California. Battery on the other hand under penal code 242 is any unwanted physical contact with a third party.  Examples of battery include intentionally punching another person or shoving them.  No injury needs to be suffered by someone for a battery conviction.  Even lightly poking someone’s chest with a finger is sufficient for a battery conviction because that touching was not wanted.

As mentioned, battery cannot occur without an act of assault. This is because an assault is a threat to cause physical harm, backed by the physical ability to cause harm, while battery is inflicting injury on the person of another. The main distinguishing factor between the two is that no contact is necessary for you to be convicted of assault. You can consider an assault as an act that sometimes results in battery. For instance, if someone throws an object at another person, that is assault. If the object hits the person, a battery occurs.

What are the elements of assault under California penal code 240?

Under California law, every element of a crime must be met in order to find someone guilty of a crime. If even a single element is not satisfied, there must be a finding of not guilty if the case proceeds to a jury trial.

  1. You committed an act that by its nature would directly and probably result in the application of force to another person.

In law the term “application of force” means to touch in a harmful or offensive manner. The slightest touch is enough if it is done in an offensive way.  Having contact with another person, through clothing is also adequate. However, this touching does not have to cause pain or injury in any way. The touching can also be indirect through an object or causing someone else to touch the person. The act may cause harm to someone else or touch them in an offensive way.

Besides threatening to punch or hit someone.  A less obvious application of force is the throwing of objects. 


During an argument, Sarah throws her car keys at her friend Michelle but misses her.  Sarah has likely committed an assault.

Michael is on a first date with Taylor.  He asks to kiss her, but Taylor does not agree.  Michael lightly kisses her on the cheek anyways.  Michael has probably committed an assault.

  1. Your act was willful.

This means that you acted the way you did willingly or on purpose. You do not have to want to break the law or someone.  All that is required for your mental state is that you intended to perform the physical act.


Daniel was having an argument with his girlfriend Linda.  Daniel only wanted to scare Linda by punching the wall immediately to the side of her head.  Daniel’s actions were intentional and therefore enough to support a conviction of assault.

  1. You were aware of the facts that would lead a reasonable person to realize your act would directly and probably result in the application of force to another.

When you committed the act, you knew you were in a situation where the act would probably cause harm to another person. This part of the law focuses on your knowledge of the situation or that your act would potentially hurt someone and not your intent.

  1. You had the present ability to apply unlawful force.

Under PC 240, “present ability” is related to the criminal law definition of “attempt”.  Once you have the means and location you are considered to have the “present ability” to injure. It means getting yourself ready to that point where you can strike at any moment.


Chad is on the street and is holding up his fist angrily at Kyle.  However, Chad is 100 feet across the street.  Because Chad is across the street and unable to punch Kyle, Chad does not have the ability to apply force to Kyle and is therefore not guilty of assault.

  1. You were not defending yourself or someone else

A defense to a criminal charge of assault is

An Assault Illustration

You are an Arsenal fan watching the English Premier League final match of Arsenal vs. Manchester United at your favorite sports bar.  At the height of the game you begin arguing with a fan of Manchester United. As the argument escalates you swing your fist to punch the other person’s face however, you don’t make any contact at all. In such a situation, you can be convicted of assault under PC 240 if the prosecutor is able to prove that:

  • Your action of punching the other person was willful.
  • Your punch was a direct and probable result in the application of force on the person of another.
  • When you punched, you were aware of facts that would lead a reasonable person to realize that your action would directly and probably result in the application of force on another.
  • When you punched, you had the present ability to apply force to another person.

The Prosecution must prove all the four elements of the crime in order to gain a conviction against you. One direct legal route to obtain an acquittal is to disprove one of the elements of the crime. Having an experienced attorney representing you grants you the best opportunity to negate one or more elements of the crime. Criminal attorney Long Beach Criminal Lawyer has extensive experience representing clients who are accused of assault and battery. Having years of experience makes him familiar with the elements of Assault, the various defenses, the difficulties of proving certain elements and has allowed him to present the very best defenses in Court on behalf of his clients.

What are the defenses to a simple assault charge?

  1. Self Defense and Defense of others

This is one of the possible legal defenses to assault.  For this defense to apply you must have been acting reasonably in your assessment of the threat, and to the amount of force you use to respond to the threat. To be eligible for the defense of self-defense;

  • You must have reasonably believed you were in imminent danger of suffering bodily harm or being touched unlawfully.
  • You must have reasonably believed that immediate use of force was necessary to defend yourself against the danger.
  • You must have not used more force than was reasonably necessary to defend yourself against the danger.

When the danger to you is over so is your right to use force.  You also have no right to this defense if you planned to pick a fight on purpose or if the fight is mutual. Defense of others can also be used to successfully defend an assault charge and the rules of self-defense apply.

  1. No ability to use force

According to PC 240 you cannot be convicted of the crime of assault by solely intent to harm. The prosecution must prove your intent to inflict force upon the purported victim. You cannot be convicted of assault if you did not have the ability to use force or violence on the person.

  1. Lack of Willfulness

You cannot be convicted of assault under PC 240 if you did not intentionally act to use force against the person. Lack of willfulness can be used as a legal defense if there was no willful intention to inflict harm on the person of another.

  1. You were falsely accused

In the case of an assault where there is no requirement that the alleged victim needs to have suffered physical injury, it is easy to be falsely accused. It is common for people to be falsely accused out of malice and anger.

What are the penalties if you are convicted of simple assault?

Under PC 240 the maximum punishment for misdemeanor assault depends on who was assaulted. Special laws have been implemented to protect people affiliated to; some government agencies, law enforcement officers, public health and safety officers and those involved in the administration of justice. This means stiffer punishment for offenders who assault people who fall under these categories. However, simple assault on people other than those mentioned carries a fine of up to $ 1,000 or imprisonment in county jail for up to 6 months or both.

Related Offenses

Battery PC 242

In California battery and assault are related crimes since assault encompasses actions you take leading to a battery. Under PC 242 battery is any willful use of force or violence on another person.  For you to be charged with battery in California the prosecution must prove that you willfully and unlawfully touched another without their consent in a harmful or offensive manner.

Assault with a Deadly Weapon PC 245

Assault with a deadly weapon under PC 245 can be prosecuted as a felony or misdemeanor. This is a more serious charge that leads to a longer sentence and stiffer penalties. If you are convicted under PC 245 you face a sentence of several years, fines in thousands of dollars and a strike in your criminal record. If convicted of felony you will lose; you’re right to own and possess a firearm and your right to vote as well as the right to certain types of government benefits.  If you face charges of assault with a deadly weapon criminal attorney Long Beach Criminal Lawyer is well versed with this charge and will ensure you have adequate legal representation.

Disturbing the peace PC 415

Disturbing the peace or breach of peace under PC 415 is generally referred to as disorderly conduct. It is often associated with fights in public places, hosting loud parties, unruliness common in protests and rallies, confrontation with police officers and domestic violence incidents. You can be charged and convicted under PC 415 for; fighting or challenging a person to a fight in a public place; willfully and maliciously disturbing another person through loud and unreasonable noise; uttering offensive words in public that are likely to elicit an immediate and violent reaction. A violation of PC 415 is either a misdemeanor or infraction and the prosecution is at discretion to charge either way depending on the nature of the conduct.

Contact Our Assault Attorney

An assault charge requires the experience of an experienced criminal defense lawyer to ensure you are not being wrongfully charged and your constitutional rights are not infringed upon. Assault is a very common criminal charge, with different complexities.  If you, or a loved one, have been arrested for assault, it is imperative that you engage the services of a competent attorney immediately. Criminal attorney Long Beach Criminal Lawyer has robust experience representing clients accused of criminal conduct; including those faced with various assault charges. Having professional and experienced counsel from the moment you are arrested will give you confidence and the best possible outcome.

Criminal attorney Long Beach Criminal Lawyer will be by your side throughout the entire process ensuring that your Constitutional rights are protected and build a tailored defense for you and your case. He will be available for legal counsel at all times. In addition to protecting your rights, he will raise every possible defense available for your case. In the event that you are convicted of the crime of Assault, he will advocate for less stiff penalties to avoid you having to spend time in jail.

Every case has its twists and turns Long Beach Criminal Lawyer is a distinguished criminal attorney who has handled many assault cases under PC 240. If you need more information or you have been arrested for assault. Speak to California assault attorney Long Beach Criminal Lawyer at 562-304-5121 or visit our office located at 444 West Ocean Boulevard, Suite 800, Long Beach, California 90802 for a complimentary consultation on the best legal course of action based on the facts of your case.

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