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Available Defenses in a Southern California Assault Case

There are a few possible defenses available when a person has been charged with Assault under California Penal Code §240.

Failure to meet requisite elements

Prosecutor’s must prove that each element to prove assault must be met beyond a reasonable doubt. The person must have made an unlawful attempt, had the present ability to cause harm to another, and had the intent to cause violent injury on the person of another.

If the prosecutor cannot prove the elements beyond a reasonable doubt, the charge cannot go forward. It is also the job of the defense attorney to weaken prosecution’s argument and cast doubt on the evidence presented.


If the requisite elements are met beyond a reasonable doubt, but the person being charged was protecting themselves, then they may have a valid self defense claim. For a person to assert self defense, they must have used a reasonable amount of force to protect themselves. For example, if Person A attempts to hit person B with their hand, and Person B attempts to hit back with a knife, there is not a reasonable amount of force used to qualify as self defense.

In comparison, if Person A hits Person B with their fist, and Person B swings back with their fist, Person B has a valid claim for self defense. For self defense to be successful, they must also demonstrate that they had a reasonable fear of being injured.

For example, Person A hits Person B. Person B walks away, and comes back 10 minutes later and hits Person A. Although there is reasonable force, the facts indicate that Person B could not reasonably believe that Person A would cause them harm because they had hit them over ten minutes ago and Person B had safely walked away. When self defense is asserted successfully, it may lead to the charges being dismissed.

Southern California Assault Charge

California Penal Code §240 defines assault and it’s elements. The statute defines assault as “ an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

An unlawful attempt

The person needs to only attempt harm, he does not have to succeed. For example, Dan swings his fist at Victor with the intent to hit him in the face, but misses. This can still be charged as an assault because it was an attempt to harm and did not need to be an actual harm.

Coupled with a present ability

There must be an actual ability to harm the other, and intent to do so. If person A swings at B and misses, it can be charged as an assault, if it is shown that A had the intent to harm B. If person A is a 20 year old kid that weighs about 100 pounds ,and person B is a 45 year old construction worker who weighs close to 200, there is an argument against assault. Person A may have intended to hit B, but there is no actual ability for A to harm person B.

To commit a violent injury on the person of another

There must be the intent to commit a violent injury and not otherwise. For example, person A from one end of a bar gets angry at person B and breaks a beer bottle over the table. There will not be a valid assault charge because there is no intent to commit a violent injury on the person of another. Person A merely broke a beer bottle in anger towards person B. This does manifest the attempt to actually harm or cause violent injury to another.

All three elements described in the relevant statute must be present before a person can be convicted of assault.

Potential Consequences

California Penal Code §240 outlines the range of potential consequences that may be imposed on a person that is convicted of an assault charge in California.

What the final sentence is depends on the specific facts of the case, and the prior criminal history of the person being charged. If the person has been convicted for several violations similar to an assault, the Judge will impose a higher penalty under the notion that the defendant is not taking the criminal charges seriously. If the facts of the case indicate a potential for extreme violence the penalty will be higher along the range.

Potential jail sentence

The relevant Penal Code section allows for a jail sentence; upon the conviction of a California assault case, from anywhere between zero to six months in county jail. If there is prior history, and/or particularly violent actions in the case, the person will be sentenced closer to six months in county jail.

Potential imposed fines

California Penal Code §240 allows for the Judge to impose up to $1,000.00 in fines for a person who is convicted of assault. It is important to remember that these fines will have additional fees and assessments, which generally end up doubling or tripling the fine. So a fine that is close to $1,000.00 may end up being closer to $3,000.00.

There is much room for negotiation when it comes to the final sentence. Evidence and powerful arguments may be presented to assure that any potential sentence remains towards the lower end of the spectrum and more importantly, does not involve any jail time.