Pursuant to California law, specifically California Penal Code §217.7, there is a specific form of assault if it involves a protected person; this carries much stiffer penalties than a simple assault. 1 The specific difference in the penalties is one of degree; a simple assault is a misdemeanor, while assaulting protected person is a felony. A conviction for a felony assaulting protected person is far more serious that a conviction for a misdemeanor assault in California.

In order to be found guilty of an assaulting protected person, the Prosecution must prove three (3) elements beyond a reasonable doubt: (1) you committed a simple assault; (2) the person you assaulted was a “protected person”, or was related to a protected person; and (3) the reason you assaulted the protected person, or their family, was either in retaliation for performance of their official duties, or for the purpose of preventing the protected person from performing their official duties.2

What Is Assault?

Assault is: 1) an unlawful attempt, 2) paired with a present ability, 3) to commit a violent injury on the person of another,1 as defined in California Penal Code §240. This means that in order to be guilty of assault, a person must unlawfully attempt to assert physical force, along with a current ability to use that physical force. If you attempt to punch someone from 20 feet away; you would not have a current ability to use that physical force. Additionally, the person attempting to use physical force must have a prior intent to cause a violent injury to another person. If you had a muscle spasm that caused your arm to swing in someone’s direction, you would not have the requisite intent to cause a violent injury on another person. It is important to note, that assault does not require that you specifically intend to cause an injury or actual awareness of the risk that another person might be injured by your action.2

To be found guilty of assault, the following elements must be proven beyond a reasonable doubt:

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.
A comprehensive discussion of the elements of assault is necessary to protect your rights, and understand the value of having competent representation from an OCCA attorney. If even one element is not proven beyond a reasonable, an individual should not be convicted of assault. At Orange County Criminal Attorney, we fight to prove the innocence of our clients.

What Is The Use Of Physical Force?

As stated above, a critical element to be proven in the Prosecution’s case against you for assault is that you willfully, or purposefully, attempted a wrongful act by use of physical force against another person.3 The “use of physical force against another person” means “by physical contact in a harmful or offensive manner.” It is essential for the Prosecution to prove a present ability to cause that physical contact. Even minor physical contact could qualify as an assault, so long as it is considered harmful or offensive. Further, assault can occur through indirect means, such as throwing an object, using an object in your hand, as well as other means. The physical contact doesn’t even have to touch the other person’s body; objects attached to the person constitute an extension of their body. Thus, an attempt to grab someone’s purse could constitute assault. It cannot be emphasized too much, that to be guilty of assault, you do not need to have succeeded in applying force to another person. What is required is that you took the action that would result in the physical force being applied. A few examples should clarify what this element entails:


Denise is at an upscale restaurant in Orange County. The waitress comes to Denise’s table to inform her that her credit card had been declined. After a few minutes of arguing with the waitress, Denise loses her temper, and reaches to smack the tray out of the waitress’s hands; the waitress deftly moved out of the way.

Denise has committed an assault. As mentioned above, it is not necessary that the Vickie was not attempting to touch the waitress’s body, and it is does not matter that Denise did not succeed in slapping the tray out of the waitress’s hands. Since the tray was in the waitress’s hands, the tray became an extension of the waitress for purposes of assault. Denise was attempting to use physical force against an extension of the waitress’s body, and has therefore committed assault.


Dana was dancing in a nightclub with Joe, her boyfriend. Vanessa slipped in between Dana and Joe, and began dancing with Joe. Dana took offense at this, and through her drink at Vanessa. Not a single drop contacted Vanessa. Dana can be found guilty of assault, despite the fact that Vanessa was never in danger of physical harm.

Remember, the touching can be ether harmful or offensive. Here, it is unlikely that the liquid from Dana’s drink would cause physical harm to Vanessa, but it clear that the liquid connecting with Vanessa would be offensive. Again, it does not matter that the liquid didn’t actually touch Vanessa. Dana’s attempt to cause the liquid to touch Vanessa is sufficient to support an assault charge.

What Is Willful Action?

The second of the three essential elements that the Prosecution must prove beyond a reasonable doubt in an assault charge is the “willful action of the Defendant.” A person is acting in a willful manner, when they intend that, or should know that, the action itself will cause a harmful or offensive touching.4

In order to satisfy the “willful action” portion of an assault charge, the prosecution must show that you willfully acted in a way that, by its very nature, will directly and probably result in a direct injury to another person. It is not necessary for the Prosecution to prove a specific intent to inflict a specific harm. The Prosecution must show that you intentionally did and act which would result in detrimental consequences.

Assault is said to be a “general intent crime.” What this means is that in order to have the requisite intent, you must intend the act itself, and know sufficient facts to lead an ordinary person to realize the nature of the act is one that will result in physical force being applied against another person.5 This means that as long as the act itself was intentional, it is no defense to say you didn’t intend unlawful conduct, or that you didn’t intend to harm somebody.

What Does Awareness Mean?

In a major decision from the Supreme Court of California, the Court held that the crime of assault does not require a subjective awareness of the risk that an injury might occur; it is immaterial whether you, individually, know this fact. The awareness required is one of a reasonable person that the conduct would directly, naturally, and probably result in a harmful or offensive touching. It is critical to understand that you can be convicted of assault even if you didn’t intend to use force against the other person. You only need to have been aware that there was a good chance your actions would lead to force being applied.7

What Does Present Ability Mean?

Pursuant to the California Penal Code, you must have the present ability to follow through on the assault, and commit a battery. Without that present ability, you cannot be found guilty of an assault. The appearance of the ability to follow through is insufficient to satisfy the present ability requirement. For instance, if you point a loaded gun at another person, the present ability requirement is satisfied. If however, there are no bullets in your gun, then that is apparent ability; it is insufficient to support a charge of assault. California does not recognize apparent ability as sufficient grounds for the crimes of assault.8

Who Is A Protected Person?

A key distinction between simple assault, and assaulting protected person is the requirement that the Prosecution prove that the victim has relationship with the government, either as an employee, or as a representative. As mentioned above, this statute also applies to the relatives of the person with the relationship to the government. The statute clarifies that relatives means immediate family, which means children, siblings, and parents. 11

California Penal Code §217.1(a) defines exactly who is a protected person, and can be found here - https://codes.findlaw.com/ca/penal-code/pen-sect-217-1.html


Arnold, the Governor of California, is advocating for a bill banning all firearms in the state. David, a California gun enthusiast, believes that this law is an affront to his Constitutional rights. He believes Arnold must pay for taking the position he has taken. David approaches Arnold at a public meeting where Arnold will put his argument forward to the masses. David approached Arnold, and threw a brick at him. Since this was retaliation for performance of Arnold’s public duties, David is at risk of being convicted for assaulting protected person.

What Intent Is Required To Commit Assaulting Protected Person?

In order to be convicted for assaulting protected person, it is critical that the Prosecution prove that your intent in assaulting the protected person was in retaliation for the performance of official duties, or for the purpose of preventing the performance of official duties. This element can be proven through what is known as “circumstantial evidence”, for example if the assault occurred at a public meeting, or in the public officer’s office, that could be sufficient to infer your intent. Ultimately however, unless your intent was in retaliation for official duties, or prevent official duties, you are facing a simple assault charge; a misdemeanor.


Damon and Vince were at a local bar one evening. Damon and Vince eventually got into a brawl at the bar. Damon grabbed a bottle of liquor and threw it at Vince. As it turns out, Vince was a police officer with a night off; he was just trying to blow off some steam. Damon cannot be convicted of assaulting protected person because his intention was not in retaliation for Vince’s work as a police officer, nor was Damon trying to prevent Vince from performing his duties as a police officer. Damon will face assault charges.

What Are The Penalties For Assaulting Protected Person?

Assaulting Protected person is known as a “wobbler offense.” This means that the Prosecution has the choice to charge you with a misdemeanor, or a felony, depending on the circumstances surrounding the case. One of the many reasons it is essential to have competent counsel, is the ability of your attorney to persuade the Prosecution to charge the offense as a misdemeanor. The attorneys at Orange County Criminal Attorney have years of experience interacting with the Prosecution in Orange County, have developed a lasting relationship.

Pursuant to the California Penal Code, an assaulting government officer, in retaliation for or for the purpose of preventing the performance of official duties, is punishable by no more than one year of incarceration, or you may be subject to a fine of less than $1,00013

If the Prosecution charges you with a felony assaulting Protected person, the penalties become aggravated based on the circumstances surrounding the assault. Regardless, the penalty for felony assaulting Protected person is imprisonment in county jail from sixteen (16) to three (3) years, or a fine up to $10,000, or both. Once again, competent counsel is critical at this juncture, because they can effectively pursue the lowest punishment available. OCCA attorneys have experience effectively advocating for lesser sentences.

What Are The Legal Defenses To Assaulting Protected Person?

Assaulting Protected person is known as “wobbler”, as mentioned above. If you are convicted of assaulting Protected person, be it a felony or a misdemeanor, the crime will remain on your criminal record. This means potential employers might see this in your background check, which could have negative implications for job prospects. If you have been charged with assaulting Protected person, it is critical that you contact an Orange County Criminal Attorney associate immediately. The sooner you have competent counsel on your side, the sooner your OCCA attorney can begin crafting a defense to prevent you from being convicted. OCCA has great success representing their clients, this is because OCCA attorneys have significant experience representing clients in all manners of criminal charges; including assaulting Protected person. There are a number of defenses to assaulting Protected person that Orange County Criminal Attorney can assert on your behalf:

  • You did not have the “present ability” to actually harm the Protected person.
  • A very successful argument in most “intent” crimes (crimes, which require a particular state of mind), is simply that the requisite intent was not present. In this case, that the assault was not motivated by an intent in retaliation for performance of official duties, or for the purpose of preventing the performance of official duties.
  • You were protecting yourself, or someone else.