Assault – California Penal Code 240

Though “assault” and “battery” are often grouped together, they are separate crimes under the California law. Assault is defined in California Penal Code 240 (Part 1, Title 8, Chapter 9, Section 240). It states, in whole:

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

Under this code are a variety of different situations and “types” of assault, all of which may carry different penalties, including jail time and fines. The reason assault is often associated with battery is that the former tends to lead to the latter. While assault is the attempt to cause bodily harm, battery is the actual action of doing so.

Factors in Assault Cases

Certain factors must be present in the alleged crime for assault — in this case, simple assault — charges to stick under Penal Code 240. These include:

  1. The defendant acted in a way that would lead a reasonable person to believe the defendant would directly and probably use physical force against someone;
  2. The defendant acted in such a way willfully;
  3. The defendant had the ability to apply force to the alleged victim.

While these factors may seem to include any sort of assault, there are a few exceptions. The main exception to this law is acting in self-defense or is otherwise being coerced into action under duress. However, this defense typically must be supported by strong evidence.

Explanation of These Factors

In order to more fully understand each of the above factors, let’s look more in-depth at them.

Reason to Belief the Act Could Lead to Force or Violence

As stated before, there does not have to be actual physical injury done in order for a person to be charged with assault; inflicting force falls under the realm of “battery.” Rather, the defendant must be aware that, in that moment, their actions would likely have led to force being applied.

For example: John and Amy are going through a divorce. They are in a heated argument over who will get custody of their infant son, Tommy. Hearing the commotion, Tommy wakes up and starts crying. John goes to his crib and picks him up to soothe him, all the while continuing the shouting match with Amy.

Amy, in a fit of rage, grabs a nearby vase and throws it at the wall near John’s head — and right near Tommy. She had no intent of actually hitting either of them, but wanted to at least scare John into leaving the apartment without Tommy. However, there was a good chance John and/or Tommy could have been injured by the vase, either on initial impact or by the shards. Therefore, Amy could reasonably be charged with simple assault.

Willful Actions

If your actions were on your own volition, and not because you were acting under immediate duress (i.e., not acting would have caused harm to you or someone else), you will likely be found to have acted willfully. Your intent (outside of the exception previously mentioned) is not a factor. You do not have to have intended to break the law, gain advantage or even hurt someone in order to have been acting willfully in cases of assault.

For Example: Brandon and Greg are taking advantage of a rare California snowfall and decide to have a snowball fight. However, as the “fight” goes on, Brandon gets frustrated that Greg seems to evade everything, while all of his throws peg Brandon right in the face. Brandon decides his snowballs simply aren’t traveling fast and hard enough because they are too light. So, to get heavier snowballs, Brandon puts small rocks in the middle of each of them.

Eventually, one of the pebble-laden snowballs hits Greg in the chest. When it breaks apart, Greg notices the pebble in the middle of it. At this point, he could bring assault charges against Brandon because the pebble could’ve actually hurt him, even though that was not Greg’s intent at all.

Ability to Apply Force

Assault charges are most common in close-quarter interactions. Further, force does not necessarily mean an action that would result in injury. Any kind of offensive touching can be construed as assault. If the touching of any kind is done in a rude or offensive manner, it can be considered assault.

For Example: Kat is out at a bar after yet another failed relationship. After having a few drinks, she decides to try her luck again by hitting on Sarah, who is sitting at the bar. She buys Sarah a drink, and they start talking. However, Sarah is not interested in Kat, and makes that pretty clear. As Kat drinks more and more, she loses her inhibition and starts petting Sarah’s arm and leg anyway.

Sarah, clearly uncomfortable with Kat’s advances, moves away from her. However, Kat’s actions are done, and Sarah has every right to file assault charges against her. In fact, Kat could be charged with sexual assault under California Penal Code 243.4.

Another Example: Chris decides to go tailgating before the big game on Sunday. He and his buds are enjoying a few burgers in the parking lot when obnoxious fans of the opposing team come up and start jeering them. Chris stands up to confront them and throws a punch at the leader. However, Chris has bad aim and misses the fan altogether. Nonetheless, Chris could now be charged with assault, as he had the physical capability and the intent to harm the other fan.

Penalties for Different Kinds of Assault

In California, simple assault under Penal Code 240 is considered a misdemeanor. If found guilty, you could face:

  • Jail time up to six months
  • Up to $1,000 in fines
  • Summary probation

Summary probation simply means you likely won’t have meetings with a probation officer, and you won’t have to check in with the probation department. However, you may have to perform community service, attend classes and follow other orders, such as obeying a protective order.

There are other kinds of assault that have more severe penalties. Under Penal Code 217.1(a), assaulting a public official to prevent the performance of or in retaliation for the performance of their official duties carries are a few different potential sentences. This includes local, state and national elected officials, judges, police officers, emergency responders lifeguards and other “public servants” — and their families.

If you are charged with misdemeanor, you could face county jail time up to a year and fines up to $2,000. A felony charge could result in state jail time from 16 months to three years.

Assault with a Deadly Weapon or Caustic Chemicals

Penal Code 245(a)(1) defines what assault with a deadly weapon is. If you commit assault with a firearm, knife or other deadly weapon could face either misdemeanor or felony charges. For a misdemeanor, you could be in the county jail for up to a year. For a felony charge, you could be in a state jail for two, three or four years. In addition, you could face a fine up to $10,000.

Assault with caustic chemicals, defined under Penal Code 244, is also a felony. Caustic chemicals include:

  • Sulfuric acid and other corrosive acids
  • Flammable substances (including gasoline, petroleum products and other liquids with a flashpoint no greater than 150 degrees Fahrenheit)
  • Any other substances able to burn or corrode organic tissue

The penalties for assault with caustic chemicals includes two, three or four years in a state prison.

Other Related Offenses

There are a couple of minor offenses that are related to assault. The first is disturbing the peace, defined in Penal Code 415. Factors for disturbing the peace include:

  • Fighting in public, or challenging another person to fight
  • Willfully and maliciously disturbing others by loud and unreasonable noise
  • Making statements in public toward a person that would likely provoke a violent reaction — i.e. “fighting words”

Being convicted of disturbing the peace may result in a maximum 90 days in county jail and/or a fine up to $400. If you are charged with simple assault, and the evidence is weak, the prosecutor may agree to reduce the charges down to disturbing the peace.

The other related charge is throwing an object at a vehicle, defined under Vehicle Code 23110. While this is usually a misdemeanor, it can be graduated to a felony if the object thrown could cause great bodily harm. There are times when an assault charge may be downgraded to a charge under VC 23110.

Defenses Against Assault Charges

Other defenses against assault charges include:

  • Acting in the defense of someone else
  • Not having the actual ability to inflict harm or force on someone else
  • Not acting with the required intent, or not willfully
  • Being wrongfully accused

Let’s look at each of these individually.

Acting in Defense

In order for a self-defense or defense of others to apply to your case, ALL of the following must be true:

  • There was sound reason to believe either you or someone else was in imminent danger of suffering injury or unlawful touching;
  • There was reason to believe your actions were necessary to defend against that injury or touching; AND
  • You used no more force than necessary to defend against the danger.

For Example: Craig sees his boyfriend, Andy, out on a date with one of their mutual friends, Peter, as he walks by a romantic Italian restaurant. Craig, who was on his way to the gym and is pumped up on a pre-workout protein mix, is fuming and ready for a fight. He storms into the restaurant and bellows out Andy’s name. The waiter, seeing what’s about the happen, rushes over and tackles Craig to stop him. Craig goes down and hits his head on a chair.

Though the waiter may have charges brought against him, he can legally say he was acting in the defense of others, and that his tackle was necessary to stop Craig from injuring Andy and/or Peter.

Inability to Use Force

Inability to use force does not necessarily mean the alleged assailant is physically incapable of such act. It means that the defendant must be able to apply force as an immediate threat.

For Example: Tiffany decides to go Black Friday shopping. She sees the TV she has been looking for at the local electronics store. But there’s a problem: There’s only one left. She and another woman, Diana, both reach it at the same time. They get into a shouting match over who gets to buy it, and security comes over. Just before they start physically fighting, security separates them. Regardless, Tiffany still tries to take a swing at Diana.

Though other charges may be brought against them, neither Tiffany nor Diana would be charged with assault. Even though Tiffany tried to take a swing at her, they were separated by security and had no way of actually hitting one another.

Acting Unwillfully or Without Proper Intent

In order to be charged with assault, you must act willfully and with the intent of applying force on another person — even if that force is simply unlawful touching. There are any number of reasons why this situation may occur, or why your actions may be misinterpreted by the alleged victim.

For Example: It’s rush hour, and the Omnitrans bus is packed. Stephen tries to find a seat, but unfortunately the bus is packed. So, Stephen grabs onto a rail and stands for the duration of the ride, along with a dozen other people. An animal runs in front of the bus, and the driver slams on the brakes. The bus lurches, causing Stephen to stumble. In his attempt to make sure he doesn’t fall, he instinctively reaches out his hand, unfortunately grabbing a woman on the shoulder.

While the woman may think he was touching her inappropriately, Stephen would be able to use the defense of not acting willfully. He was simply trying to make sure he didn’t fall, and didn’t have the intent of touching her.

Being Falsely Accused

A person may falsely accuse another of assault for a variety of reasons. And because no physical harm must be done for assault to have occurred, a false accusation can be difficult to defend against. A person may falsely accuse another of assault due to:

  • Jealousy
  • Anger
  • Revenge
  • A misunderstanding

For Example: Tina and Fred have been dating for years. It comes out one night at dinner that both have cheated on the other. They are both clearly hurt and decide it is best to break up. However, Fred rationalizes that, because he slept with a random woman while Tina slept with his best friend, he wants one last act of revenge. So, he goes down to the local police department and files an assault charge against her.

An experienced criminal defense attorney would be able to see right through such a claim and make sure Tina didn’t face any jail time for the alleged act. In addition, Fred could be charged with making a false report of a crime under Penal Code 148.5.

If you have been charged with assault under Penal Code 240 or any related charge in San Bernardino, contact MBLK Law Firm today. Our attorneys have decades of combined experience handling criminal cases. Call today for a free initial consultation. For more information, visit our Violent Crimes page.