Assault California Penal Code Section 240

Assault is: 1) an unlawful attempt, 2) paired with a present ability, 3) to commit a violent injury on the person of another, as defined in California Penal Code Section 240Penal Code Section 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.

If you are charged with assault, it is essential that you contact a competent attorney to represent you. The attorneys at Orange County Criminal Attorney (“OCCA”) have years of experience representing individuals in a large range of criminal charges, including assault charges. Having an attorney from OCCA can turn the tide of the criminal charges against you in your favor by building a defense from the very start, or convincing the District Attorney to drop the charges against you altogether. 

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.


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. 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.


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. 


Dennis and his friends were sitting around a camp fire. Thinking it would be funny, he walked up to Vivian, pinned her down, and began tickling her. Dennis has committed both an assault and a battery.

Using this example for purposes of “willful action”, the requisite intent is that Dennis intended to pin, and tickle, Vivian. While it is probably true that Dennis didn’t intend to harm or offend Vivian, it doesn’t matter; Dennis intended the act of attempting to pin and tickle Vivian.


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.


Dom and Victor were hanging out at Dom’s house playing video games. Victor continuously taunted Dom, to the point that Dom became livid. Dom went to his room, grabbed a loaded gun, threatened to shoot Victor, and fired the gun in the air. Dom never actually intended to shoot and hurt Victor, he intended to scare him. It doesn’t matter, because a reasonable person would be aware that a gun being shot at someone could result in harm.  


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.


Larry and Vann enter into a lease agreement. Over the next several months, Vann neglected to pay Larry his rent. Larry became irate over the phone one day, and threatened to kill Vann. Since Larry was not physically present, and did not perform an act, Larry did not have the present ability to actually kill Vann. It bears noting that words alone are never sufficient to form the basis of an assault. 


While there are aggravating factors, generally speaking an assault is a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment, or a fine not exceeding one thousand dollars ($1,000).  


As stated above, under California law, an assault is considered a misdemeanor. A conviction for a misdemeanor will remain on your criminal record for a long time. A conviction will show up on a background check for employment purposes. If an assault is present on your background check, it may impact your chances of gaining employment. Since there are significant consequences from a conviction, it is essential that you contact an OCCA attorney. Competent counsel can raise defenses, and advocate for the best possible outcome. Defenses can include that you didn’t act willfully, or that you didn’t have the present ability to follow through on the act, or that you didn’t utilize physical force; any one of these can defeat the Prosecution’s case against you. 

If you have been charged with assault, contact orange County Criminal Attorney immediately. Our skilled attorneys will fight for your rights, and ultimately, for your freedom. If you would like more information, please contact our successful staff to help you with your legal problems.

Under California Law, it is simple for a victim to wrongfully accuse another person of commiting the crime of assault. Sometimes this is caused by anger or jealousy. OCCA attorneys have ample experience, and know how to protect wrongfully accused individuals. 

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