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California Penal Code Section 240 - Assault

California Penal Code § Section 240 – Assault

Bigstock assault

California Penal Code (CPC) §240Assault – California's Assault  law (also known as “Simple Assault”) applies whenever anyone willfully does anything that would result in applying force to another person while having facts that would make a reasonable person realize the act would result in applying force to someone else. To be convicted, you have to have the present ability to apply force and you can't have acted in self-defense or defense of another.

Simple Assault is a Misdemeanor crime. Conviction can result in six months in a county jail, a fine of up to $1,000, or both jail time and a fine.

What Does California Penal Code §240 (Assault) Prohibit?

In sum, to be guilty of Assault under CPC §240, you must:

  • Do something that would result in applying force to a person; AND,
  • Do the act willfully; AND,
  • Be aware of facts that should make you realize your act would result in applying force; AND,
  • Have the present ability to apply force; AND,
  • Possess no legal excuse.

Defining “Assault” Under California Penal Code §240

To convict you under CPC §240, the prosecution must prove the following beyond a reasonable doubt:

  • Act/Directly And Probably…: You did an act that, by its nature, would directly and probably result in the application of force[1] to another person; AND,
  • Willfully: You did the act willfully;[2] AND,
  • Aware Of Facts/Reasonable Person...: When you acted, you had facts that would make a reasonable person realize the act would directly and probably result in applying force to someone;[3] AND,
  • Present Ability/Apply Force: When you acted, you had the present ability[4] to apply force; AND,
  • No Legal Excuse:[5] You didn't act in self-defense or in defense of someone else.

Example:  Defendant Dick is a professional football player. He is about to tackle Victim Vern during a game when a penalty flag is thrown, indicating that play has stopped and no one should even attempt to strike another player. Dick, however, lunges at Vern, shocking Vern and sending him falling backward. Vern shatters his pelvis as he hits the ground.[6] He calls for stadium police and has Dick arrested for Assault under CPC §240. Dick insists that he was “just playing the game.” Should Dick be convicted?

Conclusion: Dick willfully lunged at Vern, clearly having the present ability to strike Vern, and (since he was facing Vern on a football field) he possessed facts that should've led him to realize that lunging would've resulted in force being used against Vern. Thus the act itself would've directly and probably resulted in the use of force, and while Dick may have believed that the rules of the game allowed him to commit Assault, he didn't act with a legal excuse. A penalty flag was thrown; Dick was thus obligated to refrain from striking - or even appearing to strike - another player. Dick, therefore, should be convicted.

Penalties For Assault Under CPC §240

As noted previously, Simple Assault is a Misdemeanor under California law. If you're convicted of the charge, you face up to six (6) months in a county jail, a fine of up to $1,000 (one-thousand dollars), or both a fine and jail time.[7]

Defenses To California Penal Code §240 – Assault

Four of the most common defenses against a charge of Assault are:

You Were Defending Yourself or Someone Else

Example: Defendant Dale is drinking with friends at a tavern when he witnesses Victim Vin harassing   Patron, a woman, by touching her in ways she says are offensive. Dale asks Vin to leave Patron alone, but Vin refuses, telling Dale “to find” his “own girl.” Tensions quickly mount. Dale, realizing that Vin won't leave Patron alone unless he's threatened, raises his fist and tells Vin to leave or Dale will punch him. Vin leaves, finds a police officer, and reports Dale for Assault under §240. Should he be convicted?

Conclusion: Dale willfully did something that would directly and probably result in force being used against Vin (raising his fist to punch Vin) and possessed facts that should've led him to realize that the act would lead to applying force against Vin. Dale also had the present ability to hit Vin, since Vin was scared into submitting to Dale. However, Dale was trying to defend Patron against Vin's unwanted advances, which included physical acts (offensive touching). Since Vin wouldn't relent unless some sort of force was used – and since Dale didn't use more force than was required or for longer than was needed – Dale should be acquitted. He was defending someone else, which provides Dale a legal excuse.

You Didn't Have The Present Ability To Use Force

Example: Victim Vail is walking on one side of a suburban street. Her worst enemy, Defendant Deena, walks in the opposite direction on the other side. Vail decides to ignore Deena but Deena sees her, whistles to get Vail's attention, and, once Vail looks at her, punches her left palm with her right fist while glowering at Vail. Vail is frightened. She believes that Deena will cross the street to hit her. She finds a   police officer and has Deena arrested for violating CPC §240. Should Deena be convicted of the charge?

Conclusion: Deena willfully punched her palm with her fist, an act that suggests the direct and probable result would be application of force.  Knowing that Vail was her worst enemy, Deena would also have been aware of facts that could've led Vail to assume that Deena was going to apply force against Vail. Deena had no legal excuse for her act. However, Deena was on the opposite side of a street when she made the offending gesture. A reasonable person wouldn't assume Deena had the present ability to strike Vail because she was too far away at the time. Given these facts, Deena should be acquitted.

You Didn't Act Willfully

Example: A bicyclist, Defendant Daniel, is riding in the Tour de California. At one point he's riding along a narrow street inside a village. This is when another bicyclist, Competitor, pulls alongside Daniel and runs him off the road. Daniel barely avoids hitting a spectator, Victim Violet, who, fearing that she would be struck, finds a police officer and reports Daniel for Assault under CPC §240. Should Daniel be convicted?   

Conclusion: While Daniel rode his bicycle toward Violet without self-defense as an excuse, giving him the present ability to strike Violet, and while it is reasonable to assume that Daniel knew of the presence of spectators watching the race, he didn't intentionally steer his bicycle toward Violet; he was forced off the road by Competitor and unwittingly rode into the crowd. Therefore, since Daniel didn't willfully commit the act that would've constituted the Simple Assault, Daniel should be acquitted of the charge.

The Accusation Is False

Example: Defendant Darien decides to end her relationship with her girlfriend, Victim Valerie, but the breakup doesn't go well. Valerie, convinced that Darien is seeing someone else, decides to get revenge by telling police that Darien committed an Assault against Valerie even though Valerie knows that no such thing occurred. Valerie has Darien arrested and charged under §240. Should Darien be convicted?

Conclusion: As the facts indicate, Darien committed none of the elements of the crime of Assault; Valerie simply created an accusation and charged it against Darien because she wanted revenge.    Therefore, since no one should be convicted in the United States of a crime she or he didn't commit (and because there's no evidence that Darien committed an offense), Darien should be acquitted. The accusation against her is simply false.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with CPC §240 and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes several offenses related to Assault, among them:  Battery (CPC §242), Assault With A Deadly Weapon (CPC §245(a)(1)), Disturbing The Peace (CPC §415), Assault On A Public Officer (CPC §217.1(a)), Assault With Caustic Chemicals (CPC §244) and Throwing Dangerous Object At A Motor Vehicle (California Vehicle Code [CVC] §23110(b)).

Battery

Battery (CPC §242) occurs in California when anyone willfully and unlawfully uses force against another person. An act is committed “willfully” when done it willingly or on purpose. You don't have to intend on breaking the law, hurting someone else, or gaining any advantage to act “willfully.”[8] Battery is related to Assault because Assault often becomes Battery upon completion of the crime.

If you're convicted of Battery, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[9]

Note: A slight touch can be enough to commit a Battery, if it's done in a rude or angry way. The touching doesn't have to cause pain or injury.[10]

You can always find more information in the Battery section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer. That's our guarantee.

California Criminal Jury Instructions – Battery

To convict you under CPC §242, the prosecution must prove the following beyond a reasonable doubt:       

You willfully and unlawfully touched someone in a harmful or offensive manner. Additionally, you didn't act in self-defense or defense of someone else, or while reasonably disciplining a child.

Example: A divorced father, Defendant Derek, has custody of his five-year-old son, Victim Vincente, and decides to take him to a zoo. While there, Vincente strays close to the edge of a deep sunken pit used as a gorilla habitat. Derek has to grab Vincente by the arm, causing the boy's skin to bruise, but saving him from falling into the pit. Later, Vincente's mother, Ex-Wife, sees the bruises, finds out what happened and reports Derek for Battery on Vincente. He's arrested. Should Derek be convicted of the accusation?

Conclusion: Derek willfully touched Vincente in a way that harmed him by leaving bruises on Vincente's skin. However, Derek, Vincente's father, was trying to protect his son from immediate harm by pulling Vincente away from a dangerous condition. This should be considered reasonably necessary discipline consistent with Derek's duties as young Vincente's father.[11] Derek, therefore, should be acquitted.

Assault With A Deadly Weapon

Assault With A Deadly Weapon (CPC §245(a)(1)) occurs in California whenever anyone assaults another person with a deadly weapon other than a firearm or when anyone assaults another person using force likely to produce great bodily injury.

The prosecution can charge you with a Felony or a Misdemeanor, depending on the facts of the case, making Assault With A Deadly Weapon a “wobbler” crime.[12] Assault With A Deadly Weapon is related to Assault because Assault can involve using deadly weapons or force likely to produce great bodily harm.

If you're convicted of Assault With A Deadly Weapon, the penalty may be:

  • A term of up to four (4) years is state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[13]

Note: Force can be applied “indirectly by causing an object or someone else to touch”[14] another person.

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. We always guarantee it.

California Criminal Jury Instructions – Assault With A Deadly Weapon

To convict you under CPC §245(a)(1),the prosecutor must prove the following beyond a reasonable doubt:

You assaulted someone with a deadly weapon other than a firearm or used force likely resulting in great bodily injury. You acted willfully and had facts that would lead a reasonable person to realize the act would result in using force. You also had the ability to use force likely to produce great bodily injury or   assault someone and you weren't acting in self-defense or defense of another person.

Example: Police Officer responds to a call reporting that a young man, Defendant Dante, struck a young woman, Victim Vannie, with a bat. Police Officer arrives at the scene and finds Dante holding a “whiffle ball” bat made of lightweight hollow plastic. Vannie reports that Dante used the bat to strike her in the head. Dante admits that he did it and that he intended to do so. Police Officer arrests Dante for violating CPC §245(a)(1). Should Dante be convicted of the charge?

Conclusion: Dante willfully struck Vannie in the head with a bat, ordinarily a form of deadly weapon that would be covered under §245(a)(1). He obviously possessed facts that would suggest his act would result in using force, since he was trying to hit Vannie, as he admitted. He wasn't acting in defense of anyone, and he had the present ability to commit an assault, since he committed one. However, a whiffle ball bat isn't an “inherently deadly”[15] weapon. While bats made from other materials might be deadly, the bat Dante used wouldn't be covered by the statute. Dante, therefore, should be acquitted.[16]      

Disturbing The Peace

 

Disturbing The Peace (CPC §415) occurs in California whenever anyone unlawfully fights or challenges another person to fight in public, intentionally disturbs another person with unreasonable noise, or uses offensive words likely to provoke violence in public. The charge is related to Assault because Disturbing The Peace can also occur in the context of an Assault, resulting in charges of both in the same trial.

If you're convicted of Disturbing The Peace, the penalty may be:

  • A term in the county jail of up to 90 (ninety) days; OR,
  • A fine of up to $400 (four hundred dollars); OR,
  • Both a fine and imprisonment.[17]

Note: Prosecutors will sometimes use a Disturbing The Peace charge in an effort to get a defendant to plead guilty to some kind of offense.          

More information can be found in the Disturbing The Peace Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we always guarantee it.

California Criminal Jury Instructions – Disturbing The Peace

Note: While the statute creates a single crime, the prosecutor must prove different things to convict you under §415(1) (fighting), §415(2) (making unreasonable noise), or §415(3) (use of offensive words).

To convict you under §415(1), the prosecutor must prove the following beyond a reasonable doubt:

You unlawfully fought or challenged someone to fight and you were in a public place or building when the fight occurred or the challenge was made.

Example: Defendant Damian is being shouted at by his neighbor, Victim Vint, outside Damian's home. Vint follows Damian into Damian's home, and outside again, yelling all the while. Then, as Vint returns to his home, Damian follows. Vint allows him entrance. Damian challenges Vint to a fight when both are inside Vint's home. Vint calls the police and has Damian arrested for violating §415(1). Damian insists that Vint started the fight and that Vint should be arrested. Should Damian be convicted of the charge?

Conclusion: It's irrelevant that Vint instigated the row by shouting publicly at Damian, since Damian challenged Vint to a fight. However, while Vint might object to being challenged to a fight inside his own home, Vint's house is not a public place. Damian, therefore, shouldn't be convicted under CPC §415(1).       

Assault On A Public Officer

An Assault On A Public Officer (CPC §217.1(a)) occurs whenever Assault is committed against persons ranging from the President of the United States to jurors and their immediate families. Persons protected by the statute are defined as “public officers” under California law (CPC §§ 830.1 and 830.5).[18]

Since Assault On A Public Officer may be charged as a Misdemeanor or Felony, the crime is a “wobbler.”[19] The offense is related to Assault because Assault can occur specially against public officers under state law.  

If you're convicted of Assault On A Public Officer (without “Three Strikes” sentence enhancement), the Felony penalty may be:

  • A term of up to three (3) years in a county jail;[20],[21] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[22] OR,
  • Both imprisonment and a fine.[23]

Note: The assault must be committed as retaliation or to prevent the officer from performing official duties.[24]

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. We guarantee it.

California Criminal Jury Instructions – Assault On A Public Officer

To convict you under CPC §217.1(a), the prosecution must prove the following beyond a reasonable doubt:

You committed an assault on any one of the persons listed in the statute or CPC Sections 830.1 or 830.5. Additionally, you committed the assault in retaliation against the person or to prevent the person from performing official duties.

Example: A former assistant public defender, Victim Vince, is walking along a public street. Defendant Doug, recognizing Vince to be an old high school classmate he didn't like, is about to pass him. Thinking he'd like to play a joke on his old enemy, Doug feigns punching Vince. Vince falls down as a result. He finds a police officer and has Doug arrested for violating §217.1(a). Should Vince be convicted?      

Conclusion: Doug willfully performed an act which would've resulted in harmful or offensive contact when he pretended to punch Vince. Doug possessed facts that would lead Vince to conclude as much, since he feigned striking Vince. He had no legal excuse. Additionally, Vince is a former assistant public defender, part of the class of persons protected by the statute. However, Doug didn't assault Vince in retaliation for performing his official duties or to prevent Vince from doing so; he just wanted to upset Vince because he didn't like Vince when they were school-mates. Thus Doug shouldn't be convicted.[25]   

Assault With Caustic Chemicals

Assault With Caustic Chemicals (CPC §244) occurs whenever a “person… willfully and maliciously places or throws, or causes to be placed or thrown…  any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of [a] person.”

As the statute states, “'flammable substance' means gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.”[26] The crime is related to Assault because caustic chemicals can be used to commit Assault.

If you're convicted of Assault With Caustic Chemicals, a Felony, the penalty may be:

  • A term of up to four (4) years in a state prison;[27] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[28] OR,
  • Both imprisonment and a fine.[29]

Note:  “Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.”[30]

You can find more information in the Assault section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Assault With Caustic Chemicals

To convict you under CPC §244, the prosecution must prove the following beyond a reasonable doubt:

You willfully and maliciously placed, threw, or caused a caustic chemical to be placed or thrown on someone else. When you acted, you intended on injuring the other person's flesh or disfiguring the person's body. Finally, you didn't act in self-defense or in defense of someone else.

Example:  A political activist, Defendant Daphne, is sickened that Furrier plans on opening a shop in her town. She's also furious that a minor celebrity, Victim Victoria, is scheduled to appear to help promote Furrier's store. Daphne plans ruining Victoria's clothes as punishment. Daphne buys a bucket of “chum” (fish entrails and fish blood) and goes to the opening. She waits for Victoria to appear wearing a fur coat. Daphne splashes Victoria with the chum when she does, yelling, “Animal rights now!” Victoria, who is embarrassed, reports Daphne for violating §244 and has her arrested. Should Daphne be convicted?  

Conclusion: Daphne committed an Assault. She willfully put Victoria in immediate fear of being struck with chum, knew that the act would result in force being applied against Victoria, had the present ability to commit Assault and had no legal excuse. However, since chum is not a “caustic chemical” under the statute, Daphne couldn't commit Assault within the meaning of the law she allegedly broke. She also threw chum to humiliate Victoria and ruin her coat, not to injure her flesh or disfigure her. Thus, while Daphne committed an Assault under CPC §240, she shouldn't be convicted of violating CPC §244.[31]   

Throwing Dangerous Object At A Motor Vehicle

Throwing Dangerous Object At A Motor Vehicle (CVC §23110(b)) is a crime when anyone, intending on doing “great bodily injury[,] maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm”[32] at a vehicle or its occupant. The crime is related to Assault because an object thrown at a motor vehicle may result in an Assault charge and a charge of Throwing Dangerous Object At A Motor Vehicle in the same trial.

If you're convicted of Throwing Dangerous Object At A Motor Vehicle, a Felony, the penalty may be:

  • A term of up to three (3) years in a state prison;[33] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment. [34]

Note: You don't have to have the ability to strike the vehicle to violate CVC §23110(b). The vehicle also doesn't have to be in motion for the Vehicle Code section to apply.[35]

You can find more information on the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's guaranteed.

California Criminal Jury Instructions – Throwing Dangerous Object At A Motor Vehicle

To convict you under CVC §23110(b), the prosecution must prove the following beyond a reasonable doubt:

Intending on doing great bodily injury, you maliciously and willfully projected at a vehicle or its occupant a rock, brick, bottle, metal or anything capable of doing serious bodily harm.

Example: A truck driver, Defendant Danielle, finishes a plastic bottle of soda and decides that she doesn't feel like disposing of the bottle by pulling over and throwing it into a trash can. She rolls down her window and carelessly tosses the bottle into the air. The container, however, strikes the windshield of the driver behind her, Victim Val, and causes Val to skid off the road. Val reports Danielle's truck for violating CVC §23110. Danielle is subsequently arrested. Should Danielle be convicted of the accusation?  

Conclusion: Danielle willfully threw her bottle out her window. While it's highly debatable whether a plastic bottle is capable of doing serious injury under the circumstances, it's quite clear that Danielle didn't eject the bottle intending on doing harm to anyone; she just didn't want to stop to throw out her bottle. Thus her act wasn't actually malicious. It can also be argued that Danielle didn't throw the bottle at Val's vehicle, since she tossed the bottle from her window without paying attention to the facts of the circumstance. Therefore, Danielle shouldn't be convicted of the charge.  

What Can I Do If I'm Charged With Assault?

The State of California treats Assault as a serious offense. If you're charged with Assault, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Assault, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.

References

[1] “The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.” See California Criminal Jury Instructions 915 (CALCRIM) (2017).

[2] “Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.” See above.

[3] “The touching can be done indirectly by causing an object [or someone else] to touch the other person. [¶] The People are not required to prove that the defendant actually touched someone.” See above.

[4] “The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted. [¶] No one needs to actually have been injured by the defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.” See above.

[5] “Voluntary intoxication is [also] not a defense to assault.” See above.

[6] Facts based on Hackbart v. Cincinnati Bengals, et. al., 601 F.2d 516 (1979) (Plaintiff-Appellant Hackbart sued the Bengals club for a Battery suffered after the termination of play; 10th Circuit Appellate Court held for Hackbart).

[7] See CPC §19.

[8] See California Criminal Instructions 960 (CALCRIM) (2017).

[9] See Endnote 7.

[10] See Endnote 8.

[11] Derek's act could also be excused as a form of Defense of a Third Party (Defense of Another).

[12] See “Wobbler” definition at USLegal.com.

[13] See CPC §245(a)(1).

[14] See California Criminal Jury Instructions 875 (CALCRIM) (2017).  

[15] See above.

[16] Note that Dante could still be convicted of Battery (CPC §242).

[17] See CPC §415.

[18] See CPC §217.1(c)(2).

[19] See Endnote 12.

.

[20] Terms must be served in state prison for those with a prior “strike” conviction. See CPC §1170(h)(3).

[21] See CPC §18(a).

[22] See CPC §672

[23] See above.

[24] See CPC §217.1(a).

[25] Doug could still be convicted of Assault (CPC §240).

[26] See CPC §244.

[27] See above.

[28] See Endnote 22.

[29] See above.

[30] See California Criminal Jury Instructions 877 (CALCRIM) (2017).

[31] Daphne could also be charged with Battery (CPC §242).

[32] See CVC §23110(b).

[33] See Endnote 21.

[34] See Endnote 22.

[35] See People v. Whitney, Cal.Ct.App.4th, Cr. 16784 (1978). (Whitney claimed CVC §23110 required that he fire his pellet gun at a moving car for a conviction; Court of Appeals held for the State.)

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