Simple and Aggravated Assault

In addition to the reported assault being an unlawful action, the second most basic component of the penal code requires that the attempt be “combined with the present ability”. If the defense can demonstrate that you were physically or mentally incapable of causing harm at the time of the supposed assault, the prosecution may not have a valid argument. In the example of raising your fists mentioned above, if one or both parties were under the effects of alcohol, then it is possible that neither you nor opponent were technically physically capable of inflicting harm upon the other. Additionally, it is possible that due to the effects of alcohol, that you or your opponent were able to coherently judge the ability the other person to inflict harm. Both of these situations could possibly constitute inability or lack of present ability to inflict violence. Of course, inability is not limited to simply inebriation; it can also extend to physical or mental disability, sickness, insanity, etc. It is crucial that you work with an attorney familiar with in ins-and-outs of all of these defenses to build an argument that best fits your specific situation.

The second clause of Penal Code 240 constitutes three components. The first is the phrase “to commit”. The language used here implies active intent. In the example of raising your fists, a prosecutor may argue that act of raising your fists constitutes intent. However, since raising fists can also be an act of self-defense, it is difficult to prove intent beyond reasonable doubt. Instead, if in the example of raising your fists, you had not only raised your fists but also attempted to swing your fist, the prosecution might have a stronger, but still not necessarily airtight argument. Swinging your fist can be a preventative action (e.g you decided to swing your fist to prevent a possible attacker from approaching instead of waiting for someone to take a swing at you). In this case, your action could be interpreted as reactive instead of aggressive and therefore was not intended for the express purpose of committing violence.

The phrase “violent injury” implies that the actions of the defendant were intended to cause bodily harm. We have already determined that the action of raising one’s fists can be interpreted as reactive self-defense, but what if raised fists then are followed by extended arms? Prosecution may argue that this action is intended to cause violent injury by the act of shoving or pushing. However, outstretched arms can also be interpreted as blocking or stopping an impending attack. The prosecutor must prove that the end goal of the intended action is clearly violent injury against another.

The last component of the penal code definition of Assault constitutes the intent to violently injure another individual. In other words, the actions taken must be directed at some person other than yourself. If prosecution cannot prove this, then the case against you may be invalid. In most cases it is clear when another person is involved. However, it is our job as your attorney to examine both the facts of the case and the letter of the law to prepare an expertly crafted argument to defend you from an unfair accusation of assault.

If you are being charged with assault and battery, one of the most important questions to consider is whether or not physical contact occurred. As mentioned before, battery is defined separately from assault under Penal Code 242. The Penal Code for battery states that battery is the actual use of force on another person that is done unlawfully and willfully. Although many elements of Penal Code 242 are similar to elements of assault under Penal Code 240, the differentiating factor between the two similar penal codes are the actual use of force or violence, which means that actual physical contact needs to have occurred. This is why many cases of assault may not necessarily include battery charges.

Penal Code 243(d) specifies battery even further in what is sometimes referred to as “aggravated battery”. Much like the difference between simple assault and aggravated assault, aggravated battery is when battery results in severe injury. The language in the penal code describes aggravated battery as, battery- the use of force or violence is committed towards another person that causes bodily injury that is serious on that person.

Penal Code 243 outlines various types of battery particularly relevant to many domestic violence cases. Penal Code 243(e)(1) specifies additional and more severe punishment for battery that is committed against a spouse, a person that the accused is living with at the time of the incident, a person who is the guardian or parent of the battered child, former fiancé, or fiancée, the former spouse of the defendant, or a person that the defendant is currently or formerly dating or in an engagement relationship with. Additionally, Penal Code 243.4 defines charges that consist of “sexual battery” or battery that is specifically sexual in nature. It is important to remember that just because a plaintiff is your sexual partner does not prevent them from attempting to charge you with a violation of Penal Code 243.4.

The specific forms of battery outlined in Penal Code 243 are complex, but depending on the facts of the case and the evidence available, you can plead assault and battery down to simple assault. It takes an attorney that specializes in not only assault and battery, but specifically experienced domestic violence cases to help build a nuanced argument specific to your situation to effectively fight unfair charges.

Conviction under California Penal Code 240 is considered to be a misdemeanor, which is punishable by a fine of up to $1,000, up to six months of jail time, or possibly both.

Similarly, battery, under Penal Code 243 is punishable by a fine of up to $2,000, six months jail time, or possibly both. Domestic battery, under Penal Code 243(e)(1), has an increased punishment of up to one full year of jail time and the same $2,000 fine or the potential for both. Although more severe than an assault conviction, both battery under Penal Code 243 and domestic battery under Penal Code 243(e)(1) are considered to be misdemeanor level offenses.

Sexual battery, under Penal Code 243.4, carries an increased potential for punishment, with fines of up to $10,000 and state prison time of up to four years.

Conviction for aggravated assault under California Penal Code 245, is also more severe than its counterpart, with potential punishments including fines of up to, but not exceeding $10,000, up to four years in state prison or a year in county prison, or both fine and imprisonment.

Penal Codes 245 and 243.4 are unique offenses that are categorized as a “wobbler”. This means that they can be punished as either misdemeanor or felony, with the major distinction between misdemeanor and felony being the level of punishment that accompanies each.