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In California, “assault” covers a wide range of conduct, from a swing that never connects to an attack with a weapon. The charge decides whether you face a misdemeanor with probation or a felony that counts as a strike. Here is how the main charges work.
California assault and battery penalties at a glance
| Charge | Type | Maximum penalty |
|---|---|---|
| Simple assault, PC 240 | Misdemeanor | Up to 6 months in county jail and a $1,000 fine (PC 241) |
| Simple battery, PC 242 | Misdemeanor | Up to 6 months in county jail and a $2,000 fine (PC 243(a)) |
| Assault with a deadly weapon, PC 245(a)(1) | Wobbler | Up to 1 year in jail as a misdemeanor; 2, 3 or 4 years as a felony, which can count as a strike |
Penalties rise for certain victims and injuries. In San Diego, cases start with arraignment, and common defenses include self-defense, defense of others and challenging identification.
Assault and battery are different crimes
Assault (Penal Code § 240) is an unlawful attempt, combined with the present ability, to apply force to another person. No contact is required. Battery (Penal Code § 242) is the actual use of force or violence on another person, even a slight touch done in an angry or offensive way. Many cases are charged as both.
The main charges and their penalties
| Charge | Statute | Classification | Maximum penalty (general) |
|---|---|---|---|
| Simple assault | PC § 240, 241(a) | Misdemeanor | Up to 6 months in county jail and a $1,000 fine |
| Simple battery | PC § 242, 243(a) | Misdemeanor | Up to 6 months in county jail and a $2,000 fine |
| Assault on a peace officer, firefighter, or certain other workers on duty | PC § 241(c) | Misdemeanor | Up to 1 year in county jail and a $2,000 fine |
| Domestic battery | PC § 243(e)(1) | Misdemeanor | Up to 1 year in county jail and a $2,000 fine |
| Battery causing serious bodily injury | PC § 243(d) | Wobbler | Felony: 2, 3 or 4 years; misdemeanor: up to 1 year |
| Assault with a deadly weapon (not a firearm), or with force likely to cause great bodily injury | PC § 245(a)(1), (a)(4) | Wobbler | Felony: 2, 3 or 4 years and up to $10,000; misdemeanor: up to 1 year |
| Assault with a firearm | PC § 245(a)(2) | Wobbler | Felony: 2, 3 or 4 years; misdemeanor: 6 months to 1 year |
| Corporal injury to a spouse, partner, or co-parent | PC § 273.5 | Wobbler | Felony: 2, 3 or 4 years; misdemeanor: up to 1 year |
A “wobbler” can be charged as either a felony or a misdemeanor. The prosecutor’s charging decision, and sometimes the judge’s power to reduce a felony under Penal Code § 17(b), can make a major difference.
What makes a case more serious
- Who the alleged victim was. Assault on peace officers, firefighters, emergency workers and certain others is punished more severely, and assault with a deadly weapon on a peace officer carries 3, 4 or 5 years (PC § 245(c)).
- Injury. If great bodily injury is proven, Penal Code § 12022.7 can add three years or more to a felony sentence.
- Strike consequences. A felony conviction for assault with a deadly weapon or a firearm, or assault on a peace officer or firefighter, under § 245 is a “serious felony” (PC § 1192.7(c)(31)), and so a strike under California’s Three Strikes law. A misdemeanor conviction is not a strike. Assault by force likely to cause great bodily injury (§ 245(a)(4)) is not on this list, but it can become a strike if great bodily injury is personally inflicted or found.
- Immigration and firearms. Some assault convictions carry immigration consequences for non-citizens, and many lead to firearm prohibitions.
Common defenses
- Self-defense or defense of others. You may use reasonable force if you reasonably believed you or someone else was in imminent danger. The prosecution must prove beyond a reasonable doubt that you did not act in lawful self-defense (CALCRIM No. 3470).
- No willful act or no present ability. Accidents and empty threats are not assault.
- The object was not a deadly weapon, or the force used was not likely to cause great bodily injury. If that argument succeeds, the § 245 charge fails, and at most a lesser offense such as simple assault may remain.
- Identity and credibility. Fights are chaotic. Witness accounts conflict, and video often tells a different story.
What to do if you are charged
This article is general information about California and federal law, not legal advice for your situation. Laws change, and the right answer depends on your facts. Written by attorney Vikas Bajaj, Law Office of Vikas Bajaj, APC, San Diego.
Related: assault and battery defense.
Related: assault with a deadly weapon (PC 245).
Related: battery on a peace officer.
Talk with attorney Vikas Bajaj. He represents clients across San Diego County. Call (619) 525-7005.