Assault Penal Code Section 240

lawstachesticker_vectorizedSan Diego Assault Penal Code Section 240

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” As one can see, assault is an “attempt” crime. Generally speaking, attempted crimes occur when an individual intends to commit a crime, takes steps toward the completion of that crime, but never succeeds in bringing the end result. Although people commonly use words “assault” and “battery” interchangeably, the meaning of the crime is very different. The crimes are defined differently and carry different punishment.

There are 4 elements that the procesution must prove to the jury

  1. The defendant did an act that by its nature would directly and probably result in the application of force to a person;
  2. The defendant did that act willfully;
  3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [AND]
  4. When the defendant acted, (he/she) had the present ability to apply force to a person(;/.)

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

Difference between an Assault and Battery

A battery is defined by the Penal Code Section 242 stating that “a battery is any willful and unlawful use of force or violence upon the person of another.” Battery is actual physical harm to another person, and assault is an attempt to cause the physical harm. Many scholars often state that “assault is an attempted battery.”

A concrete example may solidify the meanings of and differences between two crimes. An example of an assault would be a person pointing a gun at another yelling: “I’ll kill you!” There appears to be a present ability to injure another person (even if the gun is unloaded). The battery does not occur until the person shoots another or hits him over the head with a gun. An assault can happen without a battery, if the person never fires the gun or makes any physical contact. But a criminal battery always starts with an assault. One cannot commit battery through committing assault first.


First of all, the prosecution has the burden to prove every element of the crime beyond a reasonable doubt in order to convict person of assault. If any of the elements are not proven beyond a reasonable doubt by the prosecution, the jury must acquit the person charged with a crime.

As previously mentioned assault is an attempt crime. Attempt is proven with “intent,” thus the prosecution must also prove that one intended to commit the battery, otherwise the jury must acquit.

California courts recognize a number of defenses to the crime of assault. Self-defense is one of the most common defenses to assault. The defense of others, intoxication, insanity, and diminished capacity could be valid defenses if the certain requirements are met. 


An assault is 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.

Greater penalties may be used if the assault is with a deadly weapon or on certain group of people (example: police officers).


Murder • Attempted Murder • Assault • Assault with a Deadly Weapon • Battery • Resisting Arrest • San Diego DUI Attorneys Overview • Marijuana Related Crimes • Burglary • Theft Crimes • Receiving Stolen Property • Robbery• Click Here For More