Although people often use the phrase “assault & battery,” both of these crimes are separate crimes with distinct elements in California. Under California law, the crime of battery involves a touching with the use of unlawful force or violence, as opposed to just an attempt to do so.
On the other hand, an “assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240). A simple assault is an attempt to commit a battery with the present ability to do so. (Pen. Code, § 240).
Under Penal Code 240, the crime of assault is classified as a misdemeanor with the following potential penalties:
- up to six (6) months in county jail; and
- a fine of up to one thousand dollars ($1,000).
Penal Code section 245, subdivision (a)(4) contains the additional element of aggravated force.
Attorney for Assault in Ventura, CA
If you were charged with an assault, then contact an experienced criminal defense attorney at Jay Leiderman Law.
During the initial consultation, you can learn more about the criminal charges pending against you, the potential penalties for this crime of violence, and the best defenses to fight the charges.
Call (805) 654-0200.
Elements of Assault
The crime of assault requires proof of the following elements:
- the act, by its nature, would result directly in the application of force to someone else;
- the act was willfully committed;
- when the act was committed, the defendant was aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
- when the act was committed, the defendant had the present ability to apply force to that person.
Assault by Means Likely to Produce Great Bodily Injury
Crimes for assault by means likely to produce great bodily injury are charged under Penal Code section 245, subdivision (a)(4).
Assault with a Deadly Weapon
Assault with a deadly weapon “requires proof only of an attempt to commit a violent injury upon the person of another. It does not require proof that an injury occurred.
Group Assault for the Great Bodily Injury Enhancement
If more than one person assaulted the victim and the jury or fact-finder cannot decide which person caused which injury, the jury is instructed that it may conclude that the defendant personally inflicted great bodily injury on the victim if the prosecution has proved the following:
- Two or more people, acting at the same time, assaulted the victim and inflicted great bodily injury on (him/her);
- The defendant personally used physical force on the victim during the group assault; and
- The amount or type of physical force the defendant used on the victim:
- was enough that it alone could have caused the victim to suffer great bodily injury; or
- was sufficient in combination with the force used by the others to cause the victim to suffer great bodily injury.
The defendant must have applied substantial force to the victim. If that force could not have caused or contributed to the great bodily injury, then it was not substantial.