San Diego Assault Defense Lawyer

Assault Definition

California simple assault law, also referred to as Penal Code 240, defines assault as an unlawful attempt to commit violent injury on another person.  For a defendant to be convicted of assault in a criminal jury trial in California, four things need to have happened:  

  1. The defendant acted in a way that resulted in the use of force against another person.
  2. The defendant completed this action willfully.
  3. The defendant was competent enough as a “reasonable person” to understand that the action would result in force or violence against another person. 
  4. The defendant had the means to apply force on another person.

The Use of Force

The use of force means physical contact that is harmful or offensive in any way.  Even a small degree of contact can be defined as assault if it is done in an offensive manner.  It also does not have to be direct physical contact, it can be indirect contact, such as causing an object to contact another person.  Additionally, you do not need to actually contact the victim, you simply have to take action that is likely to result in force against another person.

Example: A woman was approached by a man in a bar and found him to be offensive in some way.  The woman threw her drink at him.  Even though there was no risk of the woman injuring the man, it is still be considered assault.  

Willful Action

The term “willfully” applies when something is done on purpose even if the intent was not to break any law, hurt someone, or gain advantage of some kind.  

Example: Edward, in an attempt to make his friends laugh, walked up behind an unpopular teacher, pinned him to the ground, and tickled him.  A student called the campus police and Edward was arrested for assault.  Edward did not intend to break the law or harm the teacher, but tickling can be defined as an offensive means of physical contact and he willfully performed the action. As a result, he may be charged with assault under California law.


Assault under California law does not require an intention to use force against another person. It only requires that you are aware that there is a good chance your actions will lead to force against another person.

Example: Two men, Rick and Mario, were in an argument.  One night Rick drove to Mario’s to talk.  Mario came out of the house carrying a loaded gun and told Rick to go away.  Mario shot toward the fender of Rick’s truck, while Rick was standing on the other side of the truck.  Although Mario intended only to intimidate Rick, his actions are considered assault because he was aware that Rick was near the truck and there was a chance of injuring him. 


Means to Apply Force

Example: Two men got into a heated argument and their friends stepped in to separate them, moving them to opposite sides of the room.  One man swung his fist in the other man’s direction.  He would not be considered guilty of assault in this case because there was no reasonable way he could have hit the other man.

Assault vs. Battery

Assault and battery are two distinct crimes.  Their definitions are as follows:

California Assault: An attempt to use force against another person that may or may not inflict physical harm or unwanted touching.

California Battery: The actual use of unlawful violence against another person.

Often, assault is defined as “attempted battery,” and battery is defined as, “completed assault.”


Simple assault is categorized as a misdemeanor under California law.  The penalties in most cases involve:

  1. Misdemeanor (Summary) Probation.
  2. A fine of up to one thousand dollars ($1,000) and/or
  3. Up to six (6) months in county jail.

Assault on a Law Enforcement Officer

An assault on a law enforcement officer or other emergency personal carries a steeper penalty.  In particular, penalties are increased if you assault someone carrying out the performance of his or her duties.  This applies for: police officers or other law enforcement personnel, firefighters, lifeguards, traffic officers, EMTs or paramedics, lifeguards, animal control officers, process servers, code enforcement officers, members of search and rescue, or medical providers providing emergency care, such as doctors and nurses. 

An assault on a person in one of these categories could result in the following:

  1. A jail sentence of up to one (1) year and
  2. A maximum fine of two thousand dollars ($2,000).

Legal Defenses

Even if no one was physically injured as a result of your actions, you can still be charged and convicted of assault in California.  This may result in many people facing PC 240 charges who have had no criminal history in the past.  However, a California criminal defense attorney at Ross Law can help you challenge the charges using various legal defense strategies.  These include the following:

  1. Proving that you did not have the means to use force against another person. 
  2. Proving that the act was in self-defense. 
  3. Proving that your actions were not intentional. 
  4. Proving that you were wrongfully accused.


Assault law in California says that the defendant must have the ability to administer force onto another person for it to be considered assault.  If the defendant did not have the means to do that at the time of the incident, the defendant is considered not guilty.

Example: Two men got into a fight at a baseball game.  Their friends immediately separated them by pulling them to opposite sides of the aisle.  One man took a swing at the other from at least 10 feet away.  In this case, the man who swung at the other is not guilty of assault because there was no way he could have actually made contact with him


The legal defensive strategy of self-defense/defense of others applies when the defendant believed, in a reasonable manner, that he/she or someone else was in immediate danger of unlawful touching or physical injury.  Also, the defendant must have believed that the use of force was necessary to defend against the threat and only the necessary amount of force was used.

Example: Two men, who had gotten into verbal arguments in the past, had a confrontation in a parking lot.  One man, Ricardo, poked the other man, Chris, in the chest.  Chris retaliated by pushing Ricardo to the ground, causing him to badly injure his head.  In this situation, Christ may be able to defend against assault accusations if his behavior was a reasonable response to unlawful touching.


Someone is guilty of assault only if that person willfully attempted to use force on another person.  If the actions were not intentional or possibly misinterpreted by the other person, the criminal defense attorney at Ross Law will do everything in their power to make sure the prosecutor and the jury hear the whole story.

Wrongfully Accused

Penal Code 240 C does not require that the alleged victim to actually suffer an injury, it is often easy for someone to falsely accuse another person of assault.  Often, this is a result of anger, jealousy, or revenge.  If this is the case, the experienced attorneys at Ross Law will be able to gather the necessary evidence to ensure that the true story of the situation comes out.


Related Offenses

Assault charges in California can be brought about as a replacement for, or in addition to, other related offenses.

PC 242: California battery/battery causing serious injury 

The crime of battery is different from assault because it requires that the defendant actually use violence or some kind of force against another person.  California law considers battery a misdemeanor, with punishments including a maximum fine of two thousand ($2,000) dollars and/or time in county jail of up to six (6) months.

It’s important to note that you CAN be considered guilty of battery in California even if you did not actually cause physical harm to the alleged victim.  The definition of battery only requires that the defendant made physical contact in an unlawful or offensive way.  If this is the case, punishments may include steeper punishments that alight with Penal Code 242(d), battery causing serious bodily injury.  This type of offense is referred to as a wobbler and it can be charged as a misdemeanor or a felony.  If a defendant is charged with this type of felony in California, punishment can result in two (2), three (3), or four (4) years in prison.

PC 245 (a)(1): Assault with a deadly weapon 

If someone commits assault with either a deadly weapon or another means of force likely to result in great bodily injury, the case will most likely be considered assault with a deadly weapon (ADW).  Assault with a deadly weapon is considered a wobbler in California.  This offense is punishable by a maximum of one (1) year in jail and a possible felony jail sentence of two (2), three (3), or four years.

PC 415: Disturbing the peace

In California, disturbing the peace refers to any of the following:

  • Fighting in a public area,
  • Making an unreasonable amount of noise that bothers others, or
  • Using “fighting words” directly to another person in a public area

Disturbing the peace is viewed as a low-level misdemeanor in the state of California.  In some situations, this offense may be considered an infraction.  This offense carries a penalty of a maximum of ninety (90) days in jail.  If you are charged with assault (PC 240) and the case against you is weak, an attorney at Ross Law may be able to work with the prosecutor to have the charges reduced to disturbing the peace.  That would mean significantly less penalties.

Ross Law Center
750 B Street #3300
San Diego, CA 92101
Google+ San Diego

Ross Law Center
380 South Melrose Drive #363
Vista, CA 92081
Google+ Vista

Business Hours
Sunday: Open 24 hours
Monday: Open 24 hours
Tuesday: Open 24 hours
Wednesday: Open 24 hours
Thursday: Open 24 hours
Friday: Open 24 hours
Saturday: Open 24 hours