If you have been charged with assault in California, it can be tempting to do what the police or your loved ones are saying needs to be done. However, it is essential to understand that every case is unique, and your criminal record and freedom cannot be left to guesswork or chance. Instead, the most effective defense is hiring a renowned criminal defense law firm like the San Jose Criminal Attorney Law Firm.

What is Assault?

Under Penal Code Section 240 PC, assault is an attempt to cause harm to another person violently. This legal definition can be best defined by following elements of the crime that the prosecution team must prove beyond any reasonable doubt to conclude that the defendant is guilty of the crime in question.

  • The defendant acted in a manner that would probably lead to the application of force to another person,
  • The defendant acted willfully,
  • When the defendant acted, they knew of the fact that could cause a reasonable person to think that the behavior could probably and directly lead to the use of force/violence to that person, and
  • When the defendant responded, they had the present ability to use force on that person.

Definition of Key Legal Terms

For a better understanding of the facts of crime listed above, here are the definitions of the key legal terms

Application of Force

The application of force can be defined as any offensive or harmful touching. Under Penal Code 240 PC, even the slightest touch that is offensive or rude counts as assault.

The law goes ahead to include any touch that didn't or couldn't cause any injury. The touch can also be indirectly by using a substance to touch another person.

Moreover, you do not require to have used violence to the victim. All a defendant needs to do is take an action that can probably lead to force being used on the victim.

For instance: Mary gets in an argument with her sister, Ann while cooking in the kitchen. Mary loses her temper and throws a knife towards her sister. However, Mary is far from Ann when she throws the knife, and the knife doesn't land on Ann. However, since the odds are that the knife could have harmed Ann, Mary could still be charged with violating Penal Code 240 PC.


A defendant is said to have acted willfully when they do something on purpose or willingly. They don't require to have purposed to violate the law, gain an advantage, or injure another person.

Aware that the Action could result in Use of Force or Violence

It cannot be emphasized enough that you do not require to have planned to apply force against somebody else in California. You only require knowing that there is a likelihood that your behavior could result in force being used.

What is the Difference between Assault and Battery?

Although battery and assault are one of the most common offenses in San Jose, there is still a lot of confusion about them. The biggest misunderstanding lies in the definition of the crimes themselves. Under California Penal Code Section 242 PC, battery is the application of violence or force on another person, whereas assault is any act that can inflict physical injury or an offensive touch on another person.

In other words, the battery does involve actual contact, whereas assault does not necessarily have to. Battery is a completed assault and assault can be likened to an attempted battery.

Different Types of Assault in California

The law classifies different types of assault according to the seriousness of the harm that took place. Discussed below are various types of assault:

  1. Simple Assault

Simple assault is the least type of assault (it is what was discussed above). Also, a threat of serious injury that the victim thinks is real and immediate is enough to be considered a simple assault.

  1. Aggravated Assault

To be convicted with aggravated assault, you should have intended to inflict serious bodily injury using a lethal weapon like a gun, knife, and bat and caused a permanent or temporary injury.

An assault committed in the alleged victim's home is also considered as an aggravated assault.

Assault using a dangerous weapon

Using a weapon is an aggravated assault because it involves fear of more grievous hurt. It applies whether the use of a dangerous weapon results in an injury or not.

The Victim's status

Assault on police or emergency official is considered an aggravated assault. It is worth noting that the victim should be performing their duties during the assault, and you knew of the victim's status.

Moreover, assaulting a member of a protected class constitutes aggravated assault. It could include assault based on sexual orientation, ethnicity, nationality, gender, living with disability, and religion.

The defendant's intent

If you acted with an intention to cause fear of severe injury, then the assault moves from simple to aggravated assault.

  1. Sexual Assault

It is unlawful to touch somebody else's intimate part with the intent of gratification, arousal, or abuse without the alleged victim's consent. The inmate body part could be buttocks, anus, sexual organs, female's breast, and groin.

In reference to the law, to touch means you had a contact with the bare skin of the victim, whether through their clothing or directly. And if the assault results in penetration or non-consensual intercourse with the victim, it becomes rape.

It is important to note that you could be charged with sexual assault even if you are currently in a sexual relationship with the victim.

Perfect examples of sexual assault include:

  • Intentionally putting your hands inside a woman's underwear without her consent, and
  • Asking a child to masturbate in front of you.

Sexual assault carries very severe consequences and a defendant risk serving life imprisonment.

  1. Felonious Assault

Felonious assault is considered a felony and is punishable by severe penalties. It involves the use of a dangerous weapon such as a gun revolver, pistol, club, iron bar, or brass knuckle to put a victim in injury or fear (threaten somebody else). For example, brandishing a pistol in an argument is a felonious assault.

Nevertheless, felonious assault applies only to a narrow range of behavior. Back to the previous example, if you pull the trigger but the gun misfires or miss the target, then felonious assault does not apply. This is because pulling the trigger is a piece of evidence enough to constitute that you attempted to kill or injure the victim. Instead, you will be charged with attempted murder.

What Penalties Does Assault in San Jose Carry?

Assault in California is considered a misdemeanor. It is punishable by:

  • Informal probation,
  • A maximum of $1,000 in fines, and
  • A maximum of six months in jail.

It is important to note that consequences for assault are more severe if you assaulted a person belonging to one of the following professional categories who are performing their duties:

  • Law enforcement officers such as the police,
  • Firefighter,
  • Paramedic,
  • Process server,
  • Lifeguard,
  • Medical practitioners offering emergency medical attention,
  • Code enforcement official,
  • Parking control officer,
  • Traffic officer, and
  • Animal control officials.

If the victim belongs to one of the above professional categories, and the defendant knew that then they risk facing a maximum one-year sentence in county jail and a fine of $2,000.

How to Beat Penal Code Section 240 PC Charges

No defendant wants to face the severe consequences of violating Penal Code 240 PC or have a conviction on their criminal record. While you could be charged with assault for an act that involves less violence, that word could make many think that you're a ferocious person.

That is why it is important to hire a qualified criminal defense lawyer. Your lawyer should be in a position to use the following defenses to beat the charges:

You didn't have the capability to apply violence or force

The prosecutor must prove is that you should have had the capacity to apply force or violence on the alleged victim. That means if you didn't have the capability, then you did not commit the offense

For instance, Jane and Esther start fighting while in a kitchen. Their friends separate them immediately and pull them to corners of the kitchen. From her side, Jane swings her fist in Esther's direction. In this case, Jane cannot be charged with assault because she was far from Esther and that no way she could have hit her.

The Defendant Responded in Defense of Self or Other People

This legal defense can be used to assault accusation if all the following statements are correct:

  • The defendant reasonably thought that they or another person was in danger of being touched in an offensive manner or sustaining bodily hurt,
  • The defendant reasonably thought that the speedy application of force/violence was essential to protect from the danger, and
  • You did not use more force/violence than was necessary to defend against the danger.

It is worth noting that words alone, regardless of how offensive aren't enough to prove an assault. A defendant can only use self-defense or defense of other people if they rationally thought that another person was vulnerable to physical hurt or an illegal touching.

You were falsely accused

Since there are no requirements under California Penal Code Section 240 PC that the victim sustained an actual injury, it is easy for the alleged victim to falsely reproach you of assault, due to revenge, jealousy, or anger.

Any skilled attorney has handled cases that are similar to yours before. Therefore, they know how to interview witnesses as well as collect evidence to ensure the truth is revealed.

You didn't act with the needed intent or willfully

If you did not willfully try to apply force against another person, then you are not guilty of assault. Maybe your behavior was due to a misunderstanding, was accidental or was taken the wrong way by the victim. In an event, this is the situation your lawyer should ensure the jury and prosecutor know the truth.

Related offenses

Assault charges in California can also be filed in place of or in addition to the following related offenses:

Battery with Severe Bodily Hurt (Penal Code Section 242 PC)

As previously discussed, battery is different from assault in California in that the offender must have used violence or force against the alleged victim. Battery is considered as a misdemeanor, and it attracts a maximum of a six-month sentence in county jail and a fine of $2000.

But if a defendant actually caused a severe hurt on the alleged victim, they are likely to face more serious penalties under California Penal Code Section 242(d). The offense in question is wobbler. If charged with a felony, they will face a two, three, or four-year sentence in prison.

Assault with a Deadly Weapon (Penal Code 245(a) (1) PC)

If a defendant is found guilty for committing assault using either force that is likely to result in serious bodily hurt or a lethal weapon such as a knife or gun, then they will be found guilty of breaking California Penal Code Section 245(a) (1).

Also referred to as ADW, the offense in question is a California wobbler. A misdemeanor carries a one-year county jail sentence while a felony is punishable by two, three, or four years jail sentence.

Assault on a Public Officer (Penal Code 217.1 (a))

Under Penal Code 217.1 (a) PC, assault on a public officer involves a simple assault against a public officer either as a way to stop them from performing their official duties or in retaliation. Common examples of public officers include public defenders, prosecutors, judges, and executive and elected officers of federal, state, and local government.

Violation of Penal Code 217.1 (a) is a California wobbler. A misdemeanor carries a year sentence in jail. A felony, on the other hand, attracts a sixteen month, two, or three-year jail term.

Throwing a Substance at a Car (Vehicle Code 23110 VC)

Under Vehicle Code Section 23110 VC, it is unlawful to throw a substance or object at a car which is on the street. If the elements of crime justify it, the prosecution team may decide to try you under Vehicle Code 23110 VC instead of assault.

Different from assault, throwing a substance at a vehicle doesn't require that you have the present capability to use force against the victim. You could be found guilty of the offense even when there is no way the substance you threw could hit the car or those inside it.

Generally, Vehicle Code 23110 VC is charged as a misdemeanor. Nevertheless, it can be considered as a California felony if you intended to cause severe bodily hurt, and the substance you threw could cause a serious injury.

Assault with Caustic Chemical (Penal Code 244 PC)

Violation of Penal Code 244 PC is a more severe type of assault. It can be defined as placing or throwing a caustic chemical on another person's body with an intention to disfigure or hurt them. It is a felony and is punishable by two, three, or four years in California state prison.

Disturbing Peace (California Penal Code 415 PC)

Under California Penal Code Section 415 PC, it is an offense to:

  • Direct offensive fighting words towards somebody else in public,
  • Fight another person in public, or
  • Make unreasonable noise that disturbs other people.

Disturbing peace offense is a low-level misdemeanor that attracts up to ninety days in jail. Sometimes it can be considered an infraction.

If you're accused of assault and the evidence presented against you is weak, the prosecution team may choose to reduce your charges to Penal Code 415 PC. This is an excellent outcome for any defendant since the consequences for disturbing peace are significantly less severe compared to those of assault.

Why It is Important to Hire a Qualified Criminal Defense Lawyer

Assault charges come with a lot of trouble such as severe penalties, hefty fines, and devastating consequences on your professional, personal, and social life. To avoid all these consequences, you should seek the legal guidance of a lawyer who is acquainted with the legal system. The lawyer will also:

Investigate the Case

During the initial consultation, your criminal defense attorney will try to collect as many details about your case as possible. By asking you specific questions, they can understand both the weaknesses and strengths of the case as well as come up with possible legal defenses to the case.

Additionally, the lawyer will investigate the case further to determine possible avenues of acquitting you. Typically, this involves questioning the arresting police about procedures used and talking with witnesses.

Your lawyer is entitled to review and analyze the prosecuting team's case before it's submitted to the court. This allows them to find gaps in the case against you.

Continued Contact

Your attorney should stay in contact with you to keep you informed and explain developments in your case. The criminal defense attorney should make sure that your conversation is confidential. They should deliver the information in a way that you understand the possible consequences.

Plea Bargain Negotiation

Your attorney has the responsibility to discuss your case's status and negotiating a plea bargain with the prosecutor. This could assist in securing a favorable deal that could result in reduced penalties or charges.


If you are sentenced for assault either because the court convicted you or you accepted a plea bargain, your attorney should represent you during the sentencing phase. They could outline factors that could persuade the judge to reduce your incarceration term or discuss possible alternatives to time.

Frequently Asked Questions about Assault

  1. Is there anything that is not a Legal Defense to Assault?

If you commit assault while drunk, you cannot use voluntary intoxication as a legal defense. This is because you should know that drugs or alcohol impairs your mental functioning. However, if you can prove that you were involuntary drunk, you will not be charged with assault because you did not choose to take alcohol or drugs.

Moreover, you cannot claim that you were responding to a provocative act that was not an attempt to threaten or inflict physical hurt. Words alone, irrespective of being offensive or annoying aren't an excuse for breaking assault laws in California.

  1. Can a Piece of Wood with a Sharp End be considered a Deadly Weapon?

Items like firearms are well-thought-out by the law as deadly weapons. However, an object that isn't deadly in daily use could be used under given circumstances in a way that is likely to cause severe bodily hurt; as such, it is considered to be a deadly weapon. An object is considered to be inherently dangerous using the following factors:

  • How it's used in the case's circumstances, and
  • The object's nature.
  1. What is a Serious Bodily Injury?

A serious bodily injury is a significant or substantial hurt. It does not have to be a permanent injury. It is a question of fact that is determined by the judge depending primarily on the case circumstances. Common serious bodily hurt includes cuts that require stitches, serious bruising and swelling, broken bones, loss of consciousness, concussions, and chipped teeth.

  1. Will a Defendant be Charged with Assault if they Used an Unloaded Gun?

An unloaded gun is not in a position to shoot a person and can’t assault anyone. If you used a gun that is not loaded to coerce or rob a person, you could face other charges other than assault.

However, it counts as a violation of California Penal Code 240 PC, if you hit the alleged victim with the firearm or attempted to do (irrespective of whether the firearm is loaded or not).

Finding Legal Representation Near Me

Assault is one of the most severe offenses you can face under the California criminal court system. A conviction could mean hefty fines and potentially a sentence without parole. And depending on the seriousness of the offense, the assault can get media attention. This means if you’ve been arrested for assault in California, the prosecutors and the police are more concerned about the victim’s well-being than your rights. Make no mistake; protect yourself by contacting the California Criminal Lawyer Group immediately. Contact us today at 408-622-0204; our experienced criminal defense attorneys will be glad to hear from you.