Introduction – California’s “Assault” Law

The California Penal Code – specifically, Penal Code section 240 articulates what “assault” means for purposes of criminal prosecution in this state.

As set forth therein, the elements – each of which the prosecutor must prove beyond a reasonable doubt to obtain your conviction thereunder – are codified as the following:

  1. The suspect did something which, by definition, would likely cause the use of force against another person;
  2. The suspect acted intentionally;
  3. When he/she did so, he/she knew or should have known that doing so would likely cause that result; and
  4. When he/she did so, he/she was physically capable of applying said force to the purported victim.

See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 915 (“Simple Assault -- Pen. Code § 240”).

More specifically, by defining the “application of force”, the Judicial Council intend this specific offense to entail any sort of physical contact – whether injurious or not – so long as it’s considered to be “offensive”. In other words, for example, even if you simply bumped into someone, you could still technically be charged for this crime so long as the purported victim was legitimately offended thereby.

A conviction can also result if you used indirect contact, e.g., by pushing a box of toilet paper so it lands on a shopper on the other side of a supermarket aisle.

In addition, the suspect’s attempt to assault need not be successful for a conviction hereunder – the only requirement is that he/she did something which, if successful, would likely have caused such forceful contact. However, the prosecutor must still prove that the suspect knew or should have known that such contact would have resulted had the attempt been successful.

Introduction – California’s “Battery” Law

Out of all California crimes, assault and battery are typically confused by the general public to be one and the same. In fact, however, these are two distinct/separate crimes.

Specifically, whereas Assault (Penal Code section 240) need not result in any harm or even any (offensive) contact with the purported victim, Battery (Penal Code section 242) must result in causing forceful or violent contact with the purported victim (see below).

Regardless, you can be charged with both Assault and Battery from a single incident.

Assault and Battery Crimes – Different Forms of Assault and Battery (Applicable Statutes)

California Penal Code section 240 (Simple Assault)

This statute defines this misdemeanor crime as you illegally trying – while actually having the capacity to do so – to inflict physical harm in a violent or offensive manner upon someone else.

California Penal Code section 242 (Simple Battery)

Under Penal Code section 242, you can be charged with “Simple Battery”, where no significant harm resulted (a misdemeanor) or Battery Resulting in Serious Bodily Injury (misdemeanor or felony – see below).

In other words, as with Assault (sometimes referred to as “Simple Assault” – see below), a Simple Battery conviction can result even if no actual harm was inflicted on the purported victim/accuser. The only requirement is that harmful/offensive contact actually occurred.

See CALCRIM number 960 (“Simple Battery -- Pen. Code § 242”)

And, yes, this can be confusing because you could also be charged with Simple Assault for the very same contact. But in reality, it makes little difference because you’ll still face a misdemeanor, which – unlike most misdemeanors, could result in up to a year in county jail – will result in “only” a max of 180 days therein.

See Penal Code section 243 – Battery; punishment

California Penal Code section 243(d) (Aggravated Battery Causing Serious Bodily Injury)

Again, however, if the suspect actually inflicted severe physical harm on the purported victim, then the suspect could be charged with either a misdemeanor or a felony pursuant to Penal Code section 242(d).

As a result, this type of crime is known as a “Wobbler” offense (California Penal Code section 17(b)).

But if you’re charged and convicted of a felony hereunder, you could face as much as 48 months in a state penitentiary.

This doesn’t include any sentencing enhancements for a Strike Offense (California Penal Code section 667(a)&(b); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”).

Nor does it include a Special Allegation: Inflicting Great Bodily Injury (GBI) (California Penal Code section 12022.7)
Serious injury is defined as “great bodily injury” (California Penal Code section 12022.7).

California Penal Code section 245(a)(1) (Assault with a Deadly Weapon (ADW))

However, you’ll more likely be charged – though not definitely -- with a felony if you allegedly assaulted somebody with a dangerous/deadly weapon or otherwise used violence sufficient to cause severe physical harm (such as kicking the accuser in the head with a steel-toed boot). In such event, of course, you’ll be charged with Assault with a Deadly Weapon.

A felony conviction hereunder can land you in the state pen for up to 48 months.

California Penal Code section 245(a)(2)) (Assault with a Firearm)

This is another Wobbler crime – if you’re convicted of a misdemeanor, and the judge requires a jail term, then you’ll do anywhere between 180 and 365 days in the county lock-up. If you’re convicted of a felony hereunder, and the judge requires prison, then you’ll get a range of 24, 36, or 48 months.

California Penal Code section 22610 (Assault with Stun Gun or Less Lethal Weapon)

This is always prosecuted as a misdemeanor, which means you’ll get no more than one year in the county jail as punishment. See also California Penal Code section 22610

California Penal Code section 243(b) & (c) (Battery on a Peace Officer)

If you attack or otherwise assault a police officer or similar law enforcement official while he/she is performing his/her duties – whether or not he/she is in uniform or off duty – but you don’t actually cause him/her physical harm, then you’ll face a misdemeanor with a max jail term of 12 mos. See Penal Code section 243(b).

However, if you actually injure him/her, then you’ll face a Wobbler with a misdemeanor max of 365 days in the county facility, or a felony with a prison-term range of 16, 24, or 36 mos., pursuant to California Penal Code section 1170(h)(1)). See Penal Code section 243(c)(1).

California Penal Code section 217.1(a) (Assault on a Public Official)

Assaulting a public official is charged under Penal Code section 217.1(a) and entails you committing Simple Assault against an individual with that occupation (e.g., a politician, other publicly elected person, magistrate, etc.). However, the prosecutor must prove that you assaulted him/her out of revenge for him/her performing his/her official duties, or for the purpose of preventing him/her from doing just that.

As with some of the other assault-related crimes, this one is also a Wobbler. A felony conviction hereunder can therefore result in a 36-month prison sentence.

California Penal Code section 244 (Assault with Caustic Chemicals)

Without question, one of the most heinous type of an assault crime entails you allegedly assaulting someone with caustic chemicals pursuant to Penal Code section 244. Specifically, this would mean you threw or placed some type of caustic substance or liquid on another person. The prosecutor must prove that you specifically intended to harm or scar the victim.

Not surprisingly, this crime will always be charged as a felony with a maximum of 48 mos.’ imprisonment.

California Penal Code section 149 (Assault Under Color of Authority)

If you are a law enforcement or other type of “public” officer and you illegally/unnecessarily assault someone, then you’ll face a Wobbler with either a misdemeanor max of one year in jail or a felony max of one and one-third years, two years, or three years in state prison (Penal Code section 1170(h)(1)).

California Penal Code section 220 (Assault with Intent to Commit a Felony)

Assaulting an adult or a minor for the purpose of committing a serious sexual offense or Mayhem (see below) will always be charged as a felony. A conviction hereunder involving someone at least eighteen will get you 2, 4, or 6 yrs. in a penitentiary. The low, mid, and high terms for a conviction involving someone younger are 5, 7, and 9 yrs. Penal Code sections 220(a)(1) & (2).

However, if you burglarize a residence and you attack someone therein for any of the foregoing purposes, a conviction will get you a life sentence with potential parole. Penal Code section 220(b). (This is sometimes referred to as a “Super Strike”.)

California Penal Code section 203 & California Penal Code section 205 (Mayhem)

Another potential life sentence (with possible parole) upon conviction involves Mayhem, where you intentionally disfigure someone (such as cutting off a facial feature or limb). More specifically, such a degree of maliciousness is known as Aggravated Mayhem. Note that obtaining a conviction hereunder does not require the prosecutor to prove that you intended to kill the person, only that you wanted to maim him/her.

California Penal Code section 206 & California Penal Code section 206.1 (Torture)

Another life-term felony involves you inflicting severe agony on someone because you wanted to exact vengeance upon him/her; you were trying to extort him/her; or for any other nefarious reason. To get a conviction, the prosecutor doesn’t even need to prove that the person actually endured such suffering.

Assault and Battery Crimes – Strike Offenses

As indicated above, certain types of assault crimes will typically be charged as Strike Offenses (California Penal Code section 667(a)&(b)), which, if this is your first Strike conviction, will nevertheless result in you having to complete at least 85% of your prison sentence (assuming the judge requires actual imprisonment), and could result in an additional five-year enhancement.

But if this your second Strike, then you could get double of whatever underlying sentence the judge would otherwise hand you. And if this is your Third Strike, you will likely get 25-to-life (but with potential parole).

More specifically, the following assault or battery crimes will be charged as Strike crimes because they are classified as “Violent Felonies” (California Penal Code section 667.5(c)):

Aggravated Battery Causing Serious Bodily Injury (California Penal Code section 243(d));

Assault by Means Likely to Produce Great Bodily Injury/Aggravated Assault
(California Penal Code section 245(a)(4));

Corporal Injury on a Child Resulting in Traumatic Injury
(California Penal Code section 273d);

Corporal Injury to Spouse, Cohabitant, or Fellow Parent (California Penal Code section 273.5);

Assault with a Firearm (California Penal Code section 245(a)(2));

Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1));

Assault with a Deadly Weapon (ADW) on a Police Officer (California Penal Code section 245(b)); and

Assault with a Machine Gun on a Police Officer/Firefighter (California Penal Code section 245(d)).

See Penal Code section 667.5(c)(8), which states in relevant part that Violent Felonies include “any felon[ies] in which the defendant inflicts great bodily injury on any person…, or any felony in which the defendant uses a firearm….”

In addition, a Violent Felony is also defined in this subsection as Assault with Intent to Commit a Felony (California Penal Code section 220).

Specifically, these include the following felonies:

Mayhem (California Penal Code section 203 & California Penal Code section 205);

Rape (California Penal Code section 261);

Sodomy (California Penal Code section 286);

Oral Copulation by Force, Fear, or Threats (California Penal Code section 287);

“Gang Rape” (Forcible Rape Act in Concert) or Sexual Penetration in Concert (California Penal Code section 264.1);

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288);

Forcible Sexual Penetration (California Penal Code section 289); and

First-Degree Residential Burglary (California Penal Code section 460(a); California Penal Code section 459).
See Penal Code section 667.5(c)(15).

Another type of Strike crime is known as a “Serious Felony”, as set forth in California Penal Code section 1192.7(c)(1) (“Serious felonies”).

For example, all of the above-identified assault crimes involving guns would be classified as Serious Felonies so long as you personally used it. By “use”, you could have, for example, merely stuck the gun in the victim’s face or pistol-whipped him/her to be charged with this Strike enhancement.

Other Serious Felonies include any assault or battery offense where you personally caused severe physical harm to the victim, or where allegedly committed any of the following types of assault:

  1. Committed while intending to rape or rob the victim ( Code section 1192.7(c)(10));
  2. Using a deadly/dangerous weapon/item on a cop ( Code section 1192.7(c)(11));
  3. If you were serving life in prison and attacked anyone besides another prisoner ( Code section 1192.7(c)(12));
  4. If you were a prisoner and you attacked anyone, including a fellow prisoner, with a deadly/dangerous weapon/item ( Code section 1192.7(c)(13));
  5. If you personally attacked someone with a deadly/dangerous weapon ( Code section 1192.7(c)(23));
  6. Committed while intending to engage in the following crimes that constitute violations of Code section 220 (Pen. Code section 1192.7(c)(29)):
    1. Mayhem,
    2. Rape,
    3. Sodomy, or
    4. Oral Copulation;
  7. Attacking a law enforcement officer or fireman with a deadly/dangerous weapon/gun/ machine gun/assault rifle/semi-auto handgun in violation of Code section 245 (Pen. Code section 1192.7(c)(31));
  8. Using a deadly/dangerous weapon on a subway/bus driver, jail or prison guard, or school official/employee as codified under Code sections 245.2, 245.3 & 245.5 (Pen. Code section 1192.7(c)(32)).

Assault and Battery Crimes – Defenses

Specific defenses to each of the above-described assault and battery crimes are discussed in other articles on this website. However, general defenses include the following:

  1. The defendant never actually had the physical capability to inflict harm or force upon the victim (see CALCRIM – number 915 – “Simple Assault -- Code § 240”);
  2. You were defending yourself or someone else from an assailant (but your belief that you or someone else was in danger of immediate harm, as well as your belief that force was required for that defense, must both have been reasonable, and you only inflicted a reasonable amount of force – see CALCRIM number 3470 – “Right to Self-Defense or Defense of Another -- Non-Homicide”.
    Also keep in mind that simply because someone insulted you, regardless of how enraged you became, never justifies attacking the other person (see CALCRIM number 917 – “Insulting Words Are Not a Defense”; see also CALCRIM number 3472 – “Right to Self-Defense: May Not Be Contrived”; see also CALCRIM number 3474 – “Danger No Longer Exists or Attacker Disabled”);
  3. You and the purported victim both voluntarily engaged in a fist fight, or the other person started the fight (see CALCRIM number 3471 – “Right to Self-Defense: Mutual Combat or Initial Aggressor”);
  4. The assault was actually an accident (i.e., you never intended to harm or make offensive contact with the purported victim -- see CALCRIM number 915); or
  5. The purported victim misunderstood your intent (e.g., you patted your football teammate’s butt to congratulate him on making a touchdown, but he thought you were making a pass at him).

The Los Angeles Defense Attorney Law Firm (LADALF)

For almost seventeen years (as of the date of this writing), LADALF’s founding lawyer Ninaz Saffari has been successfully defeating assault and battery charges ranging from simple misdemeanors all the way up to Strike offenses involving assault with a deadly weapon or assault with a firearm.