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Assault: California Penal Code Section 240

In Santa Rosa, San Rafael, Napa, Lakeport, Ukiah and Eureka

The Basics
This article is about assault in its most basic form. It is sometimes referred to as "simple assault." [1]

Crimes like assault with a deadly weapon and assault with a firearm are related offenses and defined in different sections of the California Penal Code.

Assault and battery are related crimes. While a battery cannot be committed without an assault, an assault can occur without resulting in a battery. [2] Think of assault as an act that sometimes results in battery. As an example, if someone grabs a rock and throws it at another person, that is an assault. If the rock hits that person, a battery occurs.

A list of crimes related to assault can be found in the Related Offenses section below.

Background Notes
The legal definition of assault in California has not been changed since its initial enactment in 1872 [3] . It was defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." [4] Over the years, this definition has evolved and has multiple facets. As an example, a violent touching is no longer required-an offensive touching such as an unauthorized kiss, will suffice.

First, we need to break down the crime into its required elements.

Elements of the Crime (What it takes to be convicted)

In order to convicted of assault, the prosecutor must prove beyond a reasonable doubt that:

  1. The defendant did an act that by its nature would directly and probably result in the application of force to a person,
  2. The defendant did that act willfully,
  3. 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, AND
  4. When the defendant acted, (he/she) had the present ability to apply force to a person

This still seems like a lot to process, but if we go through each element (each component of the crime), the criminal behavior begins to emerge.

Let's look at each element, one by one:

1. An act that by its nature would directly and probably result in the application of force to a person.

A. The meaning of "application of force"

  • For the purposes of this law, 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. [5]
  • The touching can also be done indirectly by causing an object (or someone else) to touch the other person.

B. So really, this element means…

  • The type of act that would typically end up harming someone else or touching him or her in an offensive way.

2. The defendant acted "willfully"

A. Definition of "willfully"

  • Someone commits an act willfully when he or she does it willingly or on purpose.
  • You don't need to intend to break the law, hurt someone else, or gain any advantage, [6] you just have to intend to do the act.

B. So really, it means…

  • Doing it on purpose

3. 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

A. What it means…

  • When you did it, you knew you were in a situation where doing the act would probably harm someone else.

B. Why it matters…

  • It matters because the meaning of this part of the law is sometimes misunderstood. Again, it focuses on your knowledge of the situation or circumstances, not your intent to hurt someone or your knowledge that the act would actually hurt someone. [7]

4. When the defendant acted, (he/she) had the present ability to apply force to a person

A. What "present ability" means…

  • The term "present ability" has been found to mean different things in different jurisdictions. [8]
  • In California, "present ability" is actually related to the criminal law definition of "attempt," not whether or not it is possible for you to actually hurt (or offensively touch) someone. [9] According to one court, "once a defendant has attained the means and location to strike immediately he has the 'present ability to injure.'" [10]

B. So it means…

  • Readying yourself to the point where you could act at any second

Putting it all back together

If we put the pieces above, back together, into a definition of assault, we end up with the following:

Assault is :

Purposefully doing an act that that would typically end up harming someone or touching them in an offensive way. - Swinging a baseball bat on a crowded bus on purpose -

AND

When you did it, you knew you were in a situation where doing the act would probably harm someone else. - You knew people surrounded you -

AND

You ready yourself to the point where you could act at any second. - You pick up the bat and cock it back over your head –

Experienced criminal defense attorneys in our offices in Santa Rosa, San Rafael, Napa, Lakeport, Ukiah, and Eureka can provide substantial insight to these types of defenses regarding the required elements of the crime.

Defenses to a Simple Assault Charge

A. Self-Defense

1. Must Be Reasonable

  • Self-defense is a one possible legal defense to assault.
  • For the defense to apply, you must have been acting reasonably, both in terms of your assessment of the threat to you and the amount of force you use to respond to that threat.
  • To be eligible for the defense of self-defense,
    1. You must have reasonably believed that you were in imminent danger of suffering bodily injury or being touched unlawfully
      • "Imminent danger" means the danger must be about to happen.
      • The threat of being harmed sometime in the future is not enough.
    2. You must have reasonably believed that the immediate use of force was necessary to defend against that danger
      AND
    3. You must use no more force than was reasonably necessary to defend against that danger. [11]
      • "Imminent danger" means the danger must be about to happen.
      • The threat of being harmed sometime in the future is not enough.

2. When the danger to you is over, so is your right to use force [12]

  • Being reasonable means that you stop applying force once the danger is over. If ,an attacker takes any steps to withdraw from the attack, the justification for force being used in self defense is terminated. One may not use force to get redress for being initially attacked.
  • Once your attacker is incapacitated, the danger is over

3. No right to this defense if you planned to pick a fight on purpose [13]

  • A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.

4. If you started the fight or the fight was mutual

  • If you started the fight or the fight was mutual, then there are additional requirements for this legal defense to apply.
  • First, you have to stop fighting and communicate this in a reasonably understandable to the person you are fighting with.
  • Second, you have to give them a chance to stop. [14]
  • Specifically:
    1. You must actually and in good faith try to stop fighting
      AND
    2. You must use words or conduct that indicate to the person you are fighting that you are done fighting them. The words or conduct you use must be of the type that a reasonable person would understand.
      AND
    3. You must give your opponent a chance to stop fighting

B. Defense of Others

You may also successfully defend an assault charge with the defense that you were defending someone else. The rules for defense of others are identical to the self-defense rules. [15]

C. Mutual Consent

  1. One defense to assault is that the alleged victim actually consented to a form of touching that would otherwise be assault. This would be a defense raised in a mutual boxing match, a football game, etc.
  2. This usually takes the form of implied consent to be touched in certain situations.
    • The most common example of this is athletic activity or competition that requires physical contact with other participants. Another example is slightly touching someone on a crowded bus to move past them.

D. Right to Kick a Trespasser off of your Land

  1. If you tell a trespasser to leave your property, they have a reasonable time to leave. However, if they don't leave and they pose a threat, you are allowed to use reasonable force to make them leave. [16]
  2. "Reasonable force" is determined by what a person in a similar situation with similar knowledge would have done.
  3. The prosecutor has the burden of showing that the amount of force you used was unreasonable

E. Right to Defend Land and Other Possessions

  1. You may use reasonable force to defend your property from imminent harm [17]
  2. You may use reasonable force to defend the property of others you have a duty to protect.

F. No Defense for Non-Threatening Words

The Victim provoked me (in a non-threatening way) -Offensive but non-threatening words

  • Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery and are NOT a defense. [18]

It is important to understand that qualified, experienced criminal defense attorneys will always give each client the very best chance of taking advantage of all available defenses.

Punishment for a Simple Assault Conviction

A. Who you assaulted matters

  • The maximum punishment for an assault conviction varies depending on who was assaulted. There are special laws in place to protect people affiliated with particular governmental agencies, people involved in law enforcement or public health and safety, and well as people involved in the administration of justice. These laws mean more severe punishment for offenders.
    • These fall under the crimes of assault involving specific victims, i.e. firemen, paramedics, etc.

B. Where the Assault Occurred Matters

  • Likewise, there are laws in place meant to discourage assault in certain places. These laws increase the punishment for what would otherwise be a simple assault.

C. Common Examples of Special Circumstances with Heightened Punishments

  1. Assault on emergency medical technicians, public life guards, traffic officers [19]
    1. Maximum Punishment
      1. A fine of up to $2,000; OR
      2. Imprisonment in county jail for up to 6 months; OR
      3. Both a fine of up to $1,000 and imprisonment in county jail for up to 6 months.
  2. Assault on a School Employee in the course of duty [20]
    1. Maximum Punishment
      1. A fine of up to $2,000; OR
      2. Imprisonment in county jail for up to 6 months; OR
      3. Both a fine of up to $1,000 and imprisonment in county jail for up to 6 months.
  3. Assault on a Juror [21]
    1. Maximum Punishment
      1. A fine of up to $2,000; OR
      2. Imprisonment in county jail for up to 6 months; OR
      3. Both a fine of up to $1,000 and imprisonment in county jail for up to 6 months.
  4. Assault that occurs at a school or public park [22]
    1. Maximum Punishment
      1. A fine of up to $2,000; OR
      2. Imprisonment in county jail for up to 6 months; OR
      3. Both a fine of up to $1,000 and imprisonment in county jail for up to 6 months.

D. Simple Assault

  • A fine of up to $1,000; OR
  • Imprisonment in county jail for up to 6 months; OR
  • Both a fine of up to $1,000 and imprisonment in county jail for up to 6 months.

Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal defense lawyers, who can help in achieving the best outcome in your case. Many times criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.

To get immediate help with your legal matter, we invite you to call us at one of our conveniently located offices to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.

  • Santa Rosa – 707-571-5550
  • Napa – 707-252-0102
  • Marin – 415-491-0223
  • Lakeport – 707-262-0503
  • Ukiah – 707-462-5950
  • Eureka – 707-445-1348

Related Offenses

  1. Greater Offenses
    1. Assault with a Deadly Weapon (ADW)
    2. Assault with a Firearm
    3. Battery
  2. Other Related Offenses
    1. Resisting Arrest

The Law Itself: California Penal Code Section 240

§ 240. Assault defined

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. [23]


[1] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 915

[2] People v. McCaffrey (1953) 118 Cal App 2d 611

[3] People v. Williams (2001) 26 Cal.4th 779, 784

[4] Cal Pen Code § 240

[5] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 915

[6] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 915

[7] People v. Williams (2001) 26 Cal.4th 779, 784

[8] People v. Valdez (1985) 175 Cal.App.3d 103, 108

[9] People v. Valdez (1985) 175 Cal.App.3d 103, 108

[10] People v. Valdez (1985) 175 Cal.App.3d 103, 113

[11] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3470

[12] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3474

[13] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3472

[14] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3471

[15] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3470

[16] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3475

[17] Judicial Council of California Criminal Jury Instructions, 2-3400 CALCRIM 3476

[18] Judicial Council of California Criminal Jury Instructions, 1-800 CALCRIM 917

[19] Cal Pen Code § 241

[20] Cal Pen Code § 241.6

[21] Cal Pen Code § 241.7

[22] Cal Pen Code § 241.2

[23] Cal Pen Code § 240

Categories: PC 240: Assault

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Ronald Dinan & Associates, Attorneys & Lawyers, Santa Rosa, CA