Assault Crimes

Were you involved in a fight or a dispute with a neighbor or a stranger? Have you been charged with an assault crime?

Most assault crimes are covered under Sections 240, 242, and 245 of the California Penal Code. Sections 240 (assault) and 242 (battery) are misdemeanors. Section 245 (assault with a deadly weapon or by means likely to cause great bodily injury) is a felony.
California Penal Code Section 240 provides as follows:

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

California Penal Code Section 242 provides as follows:

A battery is any willful and unlawful use of force or violence
upon the person of another.

California Penal Code Section 245 provides as follows:

(a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm or by
any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not exceeding one year, or by a fine
not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.
(2) Any person who commits an assault upon the person of another
with a firearm shall be punished by imprisonment in the state prison
for two, three, or four years, or in a county jail for not less than
six months and not exceeding one year, or by both a fine not
exceeding ten thousand dollars ($10,000) and imprisonment.
(3) Any person who commits an assault upon the person of another
with a machinegun, as defined in Section 16880, or an assault weapon,
as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined
in Section 30530, shall be punished by imprisonment in the state
prison for 4, 8, or 12 years.
(b) Any person who commits an assault upon the person of another
with a semiautomatic firearm shall be punished by imprisonment in the
state prison for three, six, or nine years.
(c) Any person who commits an assault with a deadly weapon or
instrument, other than a firearm, or by any means likely to produce
great bodily injury upon the person of a peace officer or
firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his
or her duties, when the peace officer or firefighter is engaged in
the performance of his or her duties, shall be punished by
imprisonment in the state prison for three, four, or five years.
(d) (1) Any person who commits an assault with a firearm upon the
person of a peace officer or firefighter, and who knows or reasonably
should know that the victim is a peace officer or firefighter
engaged in the performance of his or her duties, when the peace
officer or firefighter is engaged in the performance of his or her
duties, shall be punished by imprisonment in the state prison for
four, six, or eight years.
(2) Any person who commits an assault upon the person of a peace
officer or firefighter with a semiautomatic firearm and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, when the
peace officer or firefighter is engaged in the performance of his or
her duties, shall be punished by imprisonment in the state prison
for five, seven, or nine years.
(3) Any person who commits an assault with a machinegun, as
defined in Section 16880, or an assault weapon, as defined in Section
30510 or 30515, or a .50 BMG rifle, as defined in Section 30530,
upon the person of a peace officer or firefighter, and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, shall be
punished by imprisonment in the state prison for 6, 9, or 12 years.
(e) When a person is convicted of a violation of this section in a
case involving use of a deadly weapon or instrument or firearm, and
the weapon or instrument or firearm is owned by that person, the
court shall order that the weapon or instrument or firearm be deemed
a nuisance, and it shall be confiscated and disposed of in the manner
provided by Sections 18000 and 18005.
(f) As used in this section, “peace officer” refers to any person
designated as a peace officer in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2.

There are almost always two primary issues in an assault or battery case: identification, and truthfulness. Unless you were arrested at the scene, identification will be an issue, and you should be represented by an attorney who has experience with identifications and lineups.

The truthfulness of the alleged victim is always an issue, since the victim’s testimony will always be the prosecution’s primary method of proving the case. There may also be third party witnesses. Third party witnesses can be biased if they were friends of the victim, or may have been inaccurate in their observations or memories. In any case, you will need an experienced trial attorney who is skilled in cross examination.

There are three defenses to assault crimes:

Lack of intent. If you did not intend to assault someone, or are accused of a battery and touched them accidentally, then you are not guilty of the crime accused.

Lack of present ability to carry out the assault. The classic example of this is the person who simulates a gun and threatens to shoot the alleged victim, but has no gun. This person cannot be convicted of assault with a deadly weapon because he did not have the present ability to carry out the assault. However, this person could be charged with making criminal threats under California Penal Code Section 422. See the Criminal Threats page for more information.

Self defense or defense of another. You are privileged to use reasonable force in order to defend yourself or another person against an assault from the alleged victim.

California criminal jury instruction 3470 requires three elements to establish the defense of self defense or defense of another:
1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] ) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];
2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
AND
3. The defendant used no more force than was reasonably necessary to defend against that danger.

In order to successfully defend your rights against an accusation of an assault crime, you need to consult with an experienced criminal trial attorney.