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San Diego Assault Attorney

Under California Penal Code 240, an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. 1Assault requires unlawful attempt to use physical force with present ability to do so. Furthermore, the person committing an assault must have a prior intent to commit a violent injury of another person. However, an assault does not require a specific intent to cause injury or actual awareness of the risk that injury might occur to another person.2

In order for a defendant to be charged as an assault, the following elements must be satisfied:

  • A person willfully and unlawfully committed an act, which by its nature would result in the application of physical force on another person;
  • The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable results of this act that physical force would be applied to another person; and
  • At the time of the crime, the person committing the crime has present ability to use physical force to the other person.

Let's explain in details those elements of assault for better comprehension. These conditions are essential for someone being convicted of assault, if the prosecution does not prove these elements, a person should not be convicted of assault. San Diego Criminal Attorney will work to prove the innocence of its clients.

The use of physical force

As explained above, one of the evidence necessary to determinate an assault is whether the defendant wilfully or purposefully attempted a wrongful act committed by means of physical force against the person of another.3
The physical force of another person means by physical contact in an offensive or harmful touch. However, it is important to determine, a present ability to cause a physical contact is crucial to establish an assault. Even a superficial touching could be enough to qualify as an assault, so long the victim consider the contact an offensive touching. Also, the contact could be made in an indirect form, the offensive touching of another person can be applied with the extension of the person, meaning that, anything connected to the victim's person is part of the person, for instance, the victim's clothing, purse or any object that represent an extension of another person.
There is no need to succeeded in applying force to another person, what is required is that the defendant took action that could result in a force being applied.

Example 1

A coffee shop waitress yelled at Valerie, a regular client, because her credit card was not working and she could not pay the bill. Valerie loses her temper and threw the server's tray far away.

Example 2

Claire was dancing in a nightclub with Joe, her boyfriend, when suddenly Julie passed by and started to dance with Joe. Claire thought the approached was too offensive and because she was jealous, Claire threw her drink at Julie. In this scenario, there was no risk and injury to Julie, however this act could be considered an assault.

5 People v. Williams (2001) 26 C.4th 779, 787, 111 C.R.2d 114, 29 P.3d 197, infra, § 44

Willful Action

The second element that prosecution needs to prove to initiate the assault charge is the willful action of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, when there is no intent to hurt someone, gain advantage or break the law.4

The evidence necessary to proof an assault is that the person, the defendant, willfully committed a conduct that by its nature will probably and directly result in injury to another person. The prosecution, in a assault case, does not need to prove a specific intent to inflict a specific harm. However, it must show that the defendant intentionally engaged in an act that would produce detrimental consequences.

Since assault is a general intent crime, it requires an intentional act and knowledge of facts sufficient to lead a reasonable person to realize that the act by its nature will probably and directly result in the application of physical force against another.5
Additionally, the term of act wilfully is when the defendant does the touching willingly or purposely, however it does not mean that the individual intent to act an unlawful conduct or hurt someone else.

Example: A college student, Chris, wanted to make his colleagues laugh. He walked up behind a not popular student, Lindsay, pinned down her and started to tickle her. A professor saw the scene and called the campus police. The Campus police contacted the law enforcement and the police officer arrested him for assault.

Even though Chris did not have the intention to commit an unlawful act or injury Lindsay. However, tickling his friend in an unexpected way can be deemed as an offensive contact that could be qualified as an harmfull of physical contact of another. Further, Chris had a general intention, willfully, to perform the conduct. As a consequence of his act, Chris could be charged with assault.


The Supreme Court of California established that the crime of assault does not require a subjective awareness of the risk that an injury might occur. However, a person for being charged of an assault must be aware of the facts that would lead a reasonable person to realize that an assault would directly, naturally and probably result from his conduct, and may not be convicted based on facts he did not know but should have known. Moreover, a defendant could just be convicted with assault if the facts that he/she actually knows is sufficient to understand that the act will probably result in physical force applied to another.6
In other words, "It bears re-emphasizing that you don't need to have actually intended to use force against the “victim” for California assault laws to apply. You only need to have been aware that, under the circumstances, there was a good chance your actions would lead to force being applied."7

Example 1  

John invited his friend Kevin to hang out at his house. After a while, Kevin started to be annoying and jumped in the sofa. John, did not like Kevin's behaviour, suddenly grabbed his loaded gun, threatened Kevin to dead and shoot the gun to the ceiling. John did not intent to get Kevin injury, the intention was to intimidate Kevin. However, John could be charge of assault, under the California Penal Code 245 (a)(1), since he knows that Kevin was near him and there was a chance of Kevin could be hurt or injured.

Example 2 

Michael and Charlie are married for more than 10 years. Charlie one night saw Michael kissing another man inside his car. Michael got out of the car to talk with Charlie. Charlie used to carry a loaded gun in her purse, she asked Michael to leave her alone. Charlie in the heat of passion, shot towards the fender of Michael's car, while Michael was next to the car. Even if Charlie just had intention to intimidate Michael, her action could be considered assault, since she was aware that Michael was nearby the car and the gun could injured him.

Present ability

Under the California Penal Code § 6, an assault may be committed only if there is a present ability to commit the battery, the present ability requirement must be satisfied to charge a person of assault. Further, apparent ability conduct is not sufficient to satisfy an assault. For instance, the present ability is met when during the commission of an assault, the defendant points a gun to the victim without threat ,however, if the gun is unloaded, there is no assault, because the present ability is not met, even if apparent ability could be shown, California does not recognize the apparent ability for crimes as assault.8

Example (1): Jessica and Matt got into a lease agreement, the rent payment was agreed to be pay in the beginning of the every month. Matt, the tendant, forgot to pay the rent for two months in a roll. Jessica, the Landlord, was furious and say to Matt that if he did not pay the rent, she will kill him. In this case, Jessica could not be charged with assault, since words are not sufficient to charge someone with assault.

Example (2): Jessica and Matt got into a lease contract, the rent payment was agreed to been paid in the beginning of the every month. Matt, the tenant, forgot to pay the rent two months in a roll. Jessica, the Landlord, was furious, tried to punch Matt in his face but he was fast enough to avoid the punch. 

In this scenario, Jessica could be charged as assault, since she attempted to commit a present violent act using physical conduct towards Matt.


A simple assault is a misdemeanor, punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment.

Legal defenses:

An assault is a misdemeanor crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a assault offense registered, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with assault, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.

To contest the charges of assault, San Diego Criminal Attorney would be able to use the following legal defenses:

  • There was no ability to inflict force or violence to another person:

If the defendant does not have the ability to inflict force on the victim, the defendant could not be guilty of assault.9

  • The conduct was in self-defense or third party defense:

The self-defense theory could be applied for the assault charges if the client reasonably believes that there was an imminent danger of suffering body injury
or being touched unlawfully, there is a reasonable believe that an immediate use of force was necessary to avoid the dangers, and the uses of force was reasonable necessary to defend against the danger. 10The attorneys could use self-defense doctrine to avoid the conviction.

  • There was no required intent or willful conduct.

Sometimes the actions of the defendant were accidental or misunderstanding by the victim. Under this type of defense, it is essential that the defense attorney and the prosecution get the entire facts of the accident. If you have been charged with assault make sure you contact an attorney immediately. San Diego Criminal Attorney can help you build a strong defense, if you did not act willfully.

  • Wrongfully accused:

Under the rules of Californa Law, it is too easy for a victim falsely accuse another person of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact an attorney promptly.

Legal references:

  1. People v. Parson (2008) 44 C.4th 332, 349, 79 C.R.3d 269, 187 P.3d 1
  2. In re James M. (1973) 9 Cal.3d 517, 519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].
  3. People v. Colantuono (1994) 7 C.4th 215, 26 C.R.2d 908, 865 P.2d 704, infra, § 42.
  4. CALCRIM 915
  5. People v. Williams (2001) 26 C.4th 779, 787, 111 C.R.2d 114, 29 P.3d 197, infra, § 44
  6. People v. Williams (2001) 26 Cal.4th 779, 790.
  7. CALCRIM 915
  8. United States v Garcia (1977, CA9 Cal) 555 F2d 68.
  9. CALCRIM 915
  10. CALCRIM 3470