Without a doubt, Assault – codified at California Penal Code section 240) – is one of the most common misdemeanors charged in the state, particularly because it covers a relatively wide range of criminal acts (see below).
This specific statute describes this offense as a suspect illegally trying to physically harm someone, regardless of whether or not the suspect was successful. (There’s no such thing as attempted assault.) However, the suspect must be physically able to cause such harm at the time of the incident.
In addition to being an extremely common crime, it’s also one of the most benign misdemeanors you can be charged with. In fact, unlike most other misdemeanors, where you can get up to one year in the county jail if convicted, Assault – or Simple Assault as it’s widely known in the California criminal justice system – will, at most, result in a six-month jail term.
Assault/Simple Assault should not confused with Battery (a.k.a. Simple Battery), a similar but separate misdemeanor charged under California Penal Code section 242. The difference between the two offenses involves the fact that Battery/Simple Battery requires the suspect to actually inflict illegal force upon the accuser. (As with Assault, there is no such thing as attempted battery, which by its very definition is charged as Assault.)
As indicated above, there are numerous different types of assault offenses, including some that are charged as felonies, and which are discussed elsewhere on this website. This article, however, focuses primarily on Simple Assault.
California Statutes – Assault and Battery Crimes -- Simple Assault
California Penal Code section 240 (Simple Assault):
If you are capable of injuring somebody, and you try to do so but fail, you will be charged with this misdemeanor. But in order to convict you, a jury must find that the following elements were met beyond any reasonable doubt:
- You acted in such a manner that would likely result in the use of force against the accuser;
- When you acted, you did so intentionally;
- When you acted, you knew or should have known that the use of force would occur;
- When you acted, you had the physical capability of using that force; and
- At the time, you weren’t acting in self-defense or defense of a third party.
Keep in mind that the “use of force” means you touched, or tried to touch, the accuser in a harmful and/or offensive way. For example, willfully shoving another student with your shoulder while you were walking down the hall at school would fall under this definition. In other words, the accuser need not be harmed at all (or, again, even touched).
You can even be charged with Simple Assault if you used an object or even another person to apply the requisite force on the accuser. For example, at a movie theater, you shoved your friend into the accuser, thereby causing the latter to spill his drink and popcorn. In fact, you can be prosecuted for this offense even if you pushed your friend with the intent to bump into the accuser, but the accuser successfully sidestepped your friend.
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 915 (“Simple Assault -- Pen. Code § 240”).
For variations of Simple Assault, see also:
CALCRIM number 916 (“Assault by Conditional Threat”);
CALCRIM number 900 (“Assault on Firefighter, Peace Officer or Other Specified Victim -- Pen. Code §§ 240, 241”);
CALCRIM number 901 (“Assault on Custodial Officer -- Pen. Code §§ 240, 241.1”).
California Penal Code section 240 (Aggravated Assault):
The most extreme variation of Simple Assault is commonly – and incorrectly – known as Aggravated Assault. This entails an assault that results in severe physical harm to the accuser, use of a deadly/dangerous weapon, or assault on a specially-protected individual. See, for example:
Assault with Intent to Commit a Felony (California Penal Code section 220);
Assault by Means Likely to Produce Great Bodily Injury/Aggravated Assault (California Penal Code section 245(a)(4));
Assault with a Deadly Weapon (ADW) (Penal Code section 245(a)(1));
Assault with a Deadly Weapon (ADW) on a Police Officer (Pen. Code section 245(b));
Assault with a Machine Gun on a Police Officer/Firefighter (Pen. Code section 245(d));
Assault on a Public Official (California Penal Code section 217.1(a));
Assault Under Color of Authority (California Penal Code section 149);
Assault with Caustic Chemicals (California Penal Code section 244).
Assault and Battery Crimes -- Simple Assault -- Convictions
As previously stated, a misdemeanor conviction for Simple Assault will, at most, result in a six-month jail term.
See Punishment for Simple Assault (California Penal Code section 241(a)).
While this punishment may seem fairly minor, you can also lose your right to own, purchase, and possess firearms for up to a decade if convicted.
Punishments for the various types of aggravated assault listed above are discussed in other articles on this website.
Defenses to Assault and Battery Criminal Charges -- Simple Assault
CALCRIM sets forth the following effective defenses to a Simple Assault charge/prosecution:
- The suspect did not have the physical capability/capacity to actually use force on the accuser;
- The suspect was reasonably and justifiably defending himself or others from the accuser, and didn’t apply more than the minimal amount of force to do so;
- The suspect didn’t act intentionally (in other words, the alleged assault was simply an accident);
- The suspect and the accuser engaged in mutual combat;
- The accuser started the fight, which then resulted in mutual combat (but, again, the suspect only used the minimal amount of force to defend him/herself);
- The suspect was not reasonably aware that his/her action would result in the use of force against the accuser;
- The suspect did not intend to cause harmful or offensive contact by his/her action.
See CALCRIM number 915 (“Simple Assault -- Pen. Code § 240”).
CALCRIM number 916 (“Assault by Conditional Threat”);
CALCRIM number 3470 (“Right to Self-Defense or Defense of Another” – Non-Homicide);
CALCRIM number 3471 (“Right to Self-Defense: Mutual Combat or Initial Aggressor”);
CALCRIM number 3472 (“Right to Self-Defense: May Not Be Contrived”);
CALCRIM number 3474 (“Danger No Longer Exists or Attacker Disabled”).
Keep in mind that you cannot legitimately defend yourself by claiming that the accuser called you racist or other offensive names, or otherwise said anything that would enrage even a reasonable person.
See CALCRIM 917 (“Insulting Words Are Not a Defense”).
Also, you can’t assert a defense where you claim you got drunk, thereafter lost control, and became aggressive towards the accuser as a result thereof. In other words, “voluntary intoxication” will not help you at trial.
Example of an Assault and Battery Crime – Simple Assault
Fullerton Women Charged with Various Crimes, including Assault, for Vandalizing Restaurant
On October 5, 2019, Fullerton resident Ms. Passion Coleman (age 26 at the time) barged into an upscale restaurant in Costa Mesa just as the daily lunch rush was winding down. In her hands was a Louisville Slugger, which to the horror of the scores on diners, she used to destroy almost $5,000 in property, including a widescreen television. Coleman had recently been fired from her position there, although it remains unclear what exactly she did there.
During the incident, she also threatened to harm at least one of her former colleagues (presumably the manager who fired her).
Accompanying her was Laglennda Carr (age 23), another Fullerton resident, who participated in the vandalism (though it remains unclear why she did so). Both women were wearing hoodies covering their faces, as well as face paint. Not surprisingly, the customers immediately jumped out of their seats and ran for the exit.
Shortly thereafter, both women were arrested in the restaurant’s parking lot by Costa Mesa PD. As a result, they were charged by the Orange County DA’s Office with numerous crimes, and remained in jail until both pled guilty almost four months later in early February 2020.
Specifically, Coleman plead guilty to the following felonies:
Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1));
Making a Criminal Threat (California Penal Code section 422);
In addition, she pled guilty to the following misdemeanors:
Simple Assault (California Penal Code section 240);
Simple Battery (California Penal Code section 242: https://codes.findlaw.com/ca/penal-code/pen-sect-242.html);
Wearing a Mask During a Crime (California Penal Code section 185);
Brandishing a Firearm or Deadly Weapon (California Penal Code section 417(a)); and
Resisting Arrest (California Penal Code section 148).
As a result, she received an extremely lenient six-month jail sentence with credit for time served thanks to her qualification for a drug diversion program.
Carr was also charged with Conspiracy, felony Vandalism, Wearing a Mask During a Crime, and Resisting Arrest, as well as felony 2nd-Degree Commercial Burglary (California Penal Code section 460(b)). It remains unclear as to what transpired with her case but she presumably ended up with a similar plea deal and sentence.
Assault-Related Charges or Plea Deals Handled by the Los Angeles Defense Attorney Law Firm (LADALF)
Client Looking at ~ 3 Decades for ADW/Assault w/ Firearm; Ended Up w/ Suspended Sentence
People v. L.W. (DTLA Criminal Justice Center – October 2021):
Client admittedly robbed a marijuana dispensary at gunpoint (although he claims it was a fake gun), and allegedly threatened and choked one of the employees while doing so. Unfortunately for the client, the whole thing was captured on CCTV footage. (The exterior camera also captured the license plate of his getaway car, which is how police tracked him down.)
Client was under the influence of crystal meth at the time, which would later help him obtain an extraordinary deal (see below).
But before his plea, which took a full year to obtain, client was prosecuted for these felony charges:
2nd-Degree Robbery (Cal. Pen. Code § 212.5(c));
Robbery Cal. Pen. Code § 211);
Robbery in Concert (Cal. Pen. Code § 213(a)(1)(A));
Assault w/ Firearm (Cal. Pen. Code § 245(a)(2));
Assault w/ Intent to Commit a Felony (Cal. Pen. Code § 220);
Assault w/ Deadly Weapon (ADW) (Pen. Code § 245(a)(1)); and
Criminal Threat (Cal. Pen. Code § 422).
Finally, he was prosecuted for Personal Use of a Firearm During a Felony (Cal. Pen. Code § 12022.5).
Not surprisingly, if he was convicted of all the foregoing charges, he could be sentenced to almost three decades in a medium-security penitentiary. And with the Strike and Special Allegation (Personal Use of Firearm) enhancements, he would have to do more than four-fifths of that sentence, even with good behavior.
See Punishments for Robbery (Cal. Pen. Code § 213).
After Ninaz Saffari finally convinced the judge to give the client a second chance, the judge – at the sentencing hearing – told the client that Ninaz had obtained a once-in-a-lifetime deal.
Final Adjudication: Client only had to accept a single Robbery plea with a 9-yr. suspended sentence, 12 mos. of in-house drug rehabilitation, and 48 mos. of probation. If all goes well and client completes everything to the court’s satisfaction, he will not have served a single day behind bars.
Potential Life-Sentence Case Reduced to Assault w/ Firearm, Client Released Next Day
People v. J.C. (downtown C.C.B. – Febr. 2021):
“Johnny” was was prosecuted for 1st-Degree Attempted Murder (Cal. Pen. Code § 664 & Cal. Pen. Code § 187(a)) with a Special Allegation -- Personal Discharge of Firearm During Commission of Felony (Cal. Pen. Code § 12022.53(c)). If convicted, he could have ended up serving life (w/ potential parole).
Ninaz immediately took the offensive and kept the Deputy DA back on his heels the entire time, never allowing him to counter-punch. This strategy included her constantly pressing the case towards jury trial and preparing/arguing numerous motions, including a “995 Motion”/Motion to Suppress (Cal. Pen. Code § 1538.5).
Ninaz’s strategy convinced the D.D.A. that his case & evidence were far from airtight. More importantly, she convinced the presiding judge of the same. The judge ultimately stated on the record that he was considering issuing a dismissal of all charges against client. At that point, the D.D.A. offered “Johnny” a fantastic offer that was too good to pass up. (Particularly because the dismissal would not have been with “prejudice”, meaning the D.D.A. could have immediately re-filed the charges with a new presiding judge.)
Final Adjudication: Reduction to Assault with a Firearm (Cal. Pen. Code § 245(a)(1)). “Johnny” left jail the following morning (after serving more than eight mos. in jail) with only 24 months of formal probation.
“Ryan X” Prosecuted for ADW with a Possible Four-Year Prison Term; Reduction to Misdemeanor Battery w/ Zero Jail
People v. Ryan X. (Compton Superior Ct. – Octbr. 2020):
“Ryan X” got into an altercation with a cyclist while Ryan was cruising in his car. The cyclist alleged that Ryan had almost side-swiped him and, in response, the cyclist admitted banging his open hand on the front rear part of the car.
The cyclist then alleged that as a result, Ryan became enraged and tried to strike him with the car. Although the cyclist fell over, he received only very minor injuries.
Based on the foregoing, the DA’s Office prosecuted Ryan for Assault w/ a Deadly Weapon (Cal. Pen. Code § 245(a)(1), which carries a max prison term of 48 mos.
This offense was also prosecuted as a Strike (Cal. Pen. Code § 667(a)&(b)); Cal. Pen. Code § 667.5(c) (“Violent Felonies”); Cal. Pen. Code § 1192.7(c) (“Serious Felonies”).
If convicted, then, Ryan would have to serve out at least eighty-five percent of his prison term even with good-time credits because of the Strike.
Fortunately, Ryan retained Ninaz Saffari who battered the DA’s Office relentlessly until Ryan was offered an incredible plea deal, which he jumped on.
Final Adjudication: Reduction to misdemeanor Simple Battery (Cal. Pen. Code § 242). Still, Ryan faced six mos. in jail, but Ninaz worked out a no-jail plea, zero incarceration, informal probation, and volunteer work.
Perhaps better yet, once Ryan successfully completes probation, he can petition the court to get his conviction Expunged (California Penal Code section 1203.4). And due to Covid-19, the court even waived his volunteer-work requirement.
Client Charged w/ Assault with a Deadly Weapon, Facing Almost 3 Decades; Jurors’ Veridct: Not Guilty
People v. G.S. (L.A. Superior Ct. - downtown, Apr. ‘14):
“Gene” allegedly and repeatedly Assaulted the accuser w/ a Deadly Weapon (ADW) (Pen. Code § 245(a)(1)) – specifically, a semi auto firearm – and was therefore charged with two felony counts. Even worse, he had previously been convicted of a Strike crime (Pen. Code § 667(a)&(b)).
Thus, if convicted of the current ADW crime, he would be sentenced for a Second Strike, which meant almost 30 years in the pen if he was convicted.
But not once did Gene waver in his protestations that he was innocent and that he had been unfairly set up. He also refused to entertain taking any reduced pleas. Therefore, Ninaz tried the case before 12 jurors and two alternates.
As one of the most highly skilled and successful trial attorneys in LA County, Ninaz was able to consistently impeach the DA’s witnesses at trial and prove they were lying. She also put on defense witnesses who confirmed the prosecution’s witnesses were lying and that Gene had been framed by them. In addition, her forensics expert-witness proved to the jurors that Gene’s fingerprints were never found on the semi auto firearm he had supposedly used.
Final Adjudication: The jurors unanimously voted to acquit him of the crimes -- Gene went home less than an hour later to his greatly relieved family members.
The Los Angeles Defense Attorney Law Firm (LADALF)
As indicated above, LADALF’s mentor Ninaz Saffari has defended many different assault and assault-related cases over her more than 16.5 years’ practicing criminal law in California. In fact, since beginning her practice as a Deputy Public Defender for the Los Angeles County P.D.’s Office (where she worked during her first four yrs. as an attorney), she has handled hundreds of these types of cases with outstanding results for her clients.