~ Assault ~

California Penal Code §§ 240 and 242 are often discussed in tandem as many times when someone is hit/struck (battery) they saw the blow coming (assault). In reality, these are two separate and distinct crimes.

An assault occurs without any actual contact being made; the victim only needs to believe that they’re going to be struck for the crime to occur. The person committing the assault must also be aware that their act will likely result in the application of force on another person, without any privilege to do so. For example, if someone throws an object at someone else and misses, an assault occurred if the other person saw it coming and thought they were going to be hit. If a punch was thrown and missed, that can be sufficient for an assault to be charged as well. If, on the other hand, you threw a single feather at someone from ten feet away, there is a low probability that you would be charged with assault as a feather is unlikely to cause a violent injury, which is a requirement for an assault conviction. There is however, absolutely no requirement that any physical contact be made, only the attempt to make contact and the present ability to do so. In fact, an assault is sometimes called an “attempted battery”. As an assault never leaves a physical mark, people often falsely accuse others of “assaulting” them, which can and does lead to false arrests.

There are several solid defenses to an assault charge. For example, if you were legally defending yourself or another person from an attack, that would be an affirmative defense to an assault charge.

A conviction for violating Penal Code § 240 is a misdemeanor and can be punishable by six (6) months in the County jail and a $1,000 fine, or both. Community service or attendance in a batterer’s treatment program may also be a condition of any sentencing. Like most misdemeanor convictions, the Defendant will also be placed on three (3) years of informal probation.

Penal Code § 240 states that:

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


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