In the state of California, it is illegal to attempt to cause physical injury onto another person. This is classified into two different penal codes under California law. Penal Code 240 is classified as “assault”, or in common vernacular, “simple assault”. This is differentiated from Penal Code 245 or “assault with a deadly weapon”, sometimes referred to as “aggravated assault”.
In addition, both Penal Code 240 and Penal Code 245 are separate from “battery”, which is Penal Code 242 in the state of California. While both forms of assault are characterized by the intent to harm or cause violence, battery is the actual application of violence, or in other words, physical contact to the other party. In many cases, a battery charge is accompanied with a simple or aggravated assault charge and can be referred to as “assault and battery”. However, it is also possible to be charged with assault without making physical contact, i.e. an individual can be charged with simple assault or aggravated assault without an accompanying battery charge. Delineating the difference between simple assault, aggravated assault, and battery, especially in cases of domestic violence, takes a skillful and experienced attorney specializing in domestic violence.
To help you understand the charges you may face, we will break down the components of simple and aggravated assault and outline basic legal arguments that we can utilize to help protect you if you are facing possible charges.
The California Penal Code defines assault as any illegal attempt, combined with the current ability, to injure violently a person other than yourself.
The definition of assault constitutes several elements. To be charged with assault, the actions in question must meet all of the following criteria:
The action is unlawful.
There is a present ability to inflict harm.
The action is willful or a conscious choice.
The intent of the action is violent injury.
The action is directed against another person.
In a trial, the job of the prosecutor (opposing lawyer) is to break down each of the elements of the penal code and relate those specific elements to the details of the case. He or she must prove to the jury that the defendant (you) acted unlawfully, consciously, and with an actual attempt to cause bodily harm towards the plaintiff (your opponent). Additionally, that attempt to cause bodily harm must be coupled with an ability to cause violent injury. In other words, if the action of the defendant was lawful (e.g. self-defense), unintentional/accidental, or unable to cause harm or injury, then the prosecution may not have a valid cause against the defendant. The details of the case are up to interpretation based on specific circumstance and legal precedent and therefore it is our job as the defense attorney to shape the argument in your favor.
We apply our expert knowledge of the law to the specific elements of your case to develop a defense that works in your favor. For this reason, it is crucially important that you are honest and transparent with your attorney during the consultation. When you work with an attorney, you are granted what is known as Lawyer-Client privilege under California Evidence Codes 950-962. The evidence codes state that both you and your attorney have the right to refuse to disclose private communications between you and your attorney. In other words, things that you say to your lawyer in confidence cannot be used against you in the court of law. It is because of this law that we are able to advocate for you wholeheartedly.
While it is our job to understand and apply the law, it can be helpful for you to have a basic understanding of the elements of the law that we use to build your case. We will examine the basic legal arguments that we might utilize to help you fight an unfair accusation of assault.
The most basic element of Penal Code 240 is that your action was unlawful. While it is unlawful to threaten bodily harm unprovoked, it is lawful to defend yourself against a threat. For example, if you are being charged with assault because you raised your fists in preparation for a fight, your attorney may postulate that you raised your fists in preparation for self-defense and not in preparation to attack without provocation. It must be proven beyond reasonable doubt that you intended to inflict harm upon the plaintiff. If the circumstances surrounding the assault are unclear at best or there are witnesses to the events that occurred that can speak in your favor, there is a good chance that the prosecution cannot prove that you acted in malice.
Unfortunately, it is not simply enough to claim that you acted in self-defense. Under California Criminal Jury Instructions (CALCRIM) 505 you are required to prove to the jury that your actions met all three of the following criteria:
The defendant or the one accused reasonably believes that they or someone else was in approaching danger of suffering severe bodily injury or the threat of death.
The defendant or the one accused reasonably believes that using force was necessary in order to defend against the imminent danger.
The defendant used no more force than was reasonably necessary to defend against that danger.
All three of these criteria use the word “reasonably”, which is open to interpretation by a jury of your peers. Consequently, it is crucially important that your attorney be intimately familiar with the details of your case as well as experienced in fighting the specific types of charges that you are up against. Jury selection and building your argument may be the defining difference between punishment and acquittal.
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.
The California Penal Code differentiates between Assault and Aggravated Assault by expanding upon the definition Penal Code 240 (Simple Assault) to encompass specific types of assault with various instruments under Penal Code 245.
The first tier of aggravated assault constitutes assault with a “deadly weapon or instrument” excluding use of firearms. This includes but is not limited to, knives and other blunt instruments capable of delivering deadly force (e.g. a baseball bat or golf club). The next tier of aggravated assault escalates to include use of a firearm. The final tier of aggravated assault constitutes use of “machinegun” or “assault weapon”. While it is less likely for domestic assault cases to constitute use of a machinegun or assault weapon, many household items can be used to commit aggravated assault by blunt instrument or knife and many households may have other types of firearms.
In some cases, when being charged with aggravated assault (Penal Code 245), it is possible for the defense to plead an aggravated assault down to a simple assault charge for conviction under Penal Code 240 instead of 245. We highly suggest consulting with your attorney for a better picture of how your specific case can be plead.
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.