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Criminal Defense Information for Assault (Cal. Penal Code s. 241)

  1. What is Assault?
  2. What are the necessary elements to be found guilty of Assault?
  3. What is the sentence / punishment for Assault?
  4. What are possible defenses to charges of Assault?
  1. What is Assault?

    Girl Ready to Punch / Assault

    Girl committing assault by threatening to punch you

    Assault (Cal. Pen. Code s. 241 Opens in New Window) is essentially an attempt to commit a battery (Cal. Pen. Code s. 242 Opens in New Window) . In other words, it is a failed attempt to cause injury to a person. If the attempt actually results in contact with the victim, it becomes battery. It is often possible to have failed attempts (assaults) and some successful attempts (batteries) in the same set of actions, explaining why the term “assault and battery” is heard so often.

  2. What are the necessary elements to be found guilty of Assault?

    To prove the defendant committed Assault, the state must show that the defendant:

    1. Did an act that would be likely to directly and probably result in force being applied to another person;
    2. Acted willfully;
    3. Was aware of facts that would make a reasonable person know the act would result in force being applied to another person;
    4. Had the present ability to apply force to another person; and
    5. Did not act in self-defense of in defense of another.
  3. What is the sentence / punishment for Assault?

    Simple assault is a misdemeanor, meaning it carries a maximum sentence of six months in county jail and/or a $1,000 fine. If the assault was against an on-duty parking control officer, the sentence can be up to six months in county jail and/or a $2,000 fine. If the assault was on a peace officer, firefighter, or other emergency personnel, the sentence can be up to one year in county jail and/or a $2,000 fine. Cal. Pen. Code s. 241 Opens in New Window. If the assault takes place on school or park grounds, the sentence is a $2,000 fine and/or one year in county jail. Cal. Pen. Code s. 241.2 Opens in New Window

  4. What are possible defenses to charges of Assault?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    For Assault, convincing the jury that the prosecutor failed to prove beyond a reasonable doubt that the defendant acted willfully, had the present ability to apply force to the victim, knew that his action could result in force being applied to another, etc. would be enough to get a not guilty verdict.

    If the prosecutor can prove all the elements of Assault, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). For Assault, some of these justifications include:

    • Self-defense;
    • Defense of another;
    • Alibi;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Entrapment; and
    • Statute of Limitations.
See also, Assault on a Custodial Officer, Battery, Domestic Violence.