Assault in California as described in California Penal Code 240, is defined as an attempt to commit a violent injury on another person.
In order to be convicted of San Diego assault charges, the prosecution must prove:

  • You committed an act which was likely to result in the use of force against another person;
  • You committed this act willfully;
  • You were aware that a reasonable person would believe the act you committed would directly result in force being applied to another human, and
  • You had the ability to apply force to another person.

Assault vs. Battery

Many people still use the term “assault and battery” together, however they are two distinctly separate crimes.
While assault is an attempt to use force or violence against another person, battery is the actual use of that force or violence. 
Assault can include deliberately or carelessly causing bodily injury to another person, deliberately threatening another person with bodily harm, or engaging in physical contact with another when you know that contact is unwanted and/or offensive.

The Fear of Physical Harm Can Result in Assault Charges

You can be charged with assault if you commit an act which leads another person to fear physical harm.
Suppose you and the guy in front of you in a line get into an argument and, in an attempt to make your point, you lightly poke the person in the chest. If the man believes you intended to hurt him, or, if while you are poking him you angrily say “If you don’t move I’m going to make you wish you had,” then you may find yourself being charged with assault in San Diego.

The Subjective Nature of Assault Charges

Charges of assault can also be “subjective” and depend on the interpretation of an arresting officer. As an example, a husband may witness his wife, after having a few drinks, getting flirty with someone at a bar. They argue and the husband’s temper erupts and he yells at his wife, “I could just kill you.”

Obviously, that’s a bad choice, yet most of us have said things in anger at one time or another we later wished we could take back.
The question is, did the husband really mean he was contemplating killing his wife? Did she believe he really meant he would kill her?
As you can see, sometimes assault allegations are pretty subjective. This also means that in some instances a spouse, girlfriend/boyfriend, partner, roommate or family member could allege assault as a method of “getting back at” or “getting even with” a person they were angry with.

Penalties for Assault in San Diego

In many cases, simple assault in the state of California is charged as a misdemeanor, with penalties of up to six months in county jail and/or a fine not to exceed $1,000.
But the penalties for assault in San Diego are harsher if the person charging you belongs to one of the following professional categories:

  • Police officers or other law enforcement officers;
  • San Diego process servers;
  • A lifeguard in the San Diego area;
  • EMTs or paramedics;
  • Firefighters;
  • Animal control officers;
  • Parking control officers;
  • Code enforcement officers;
  • Traffic officers;
  • Members of a search and rescue team, or

If your assault was on a person in one of the protected classes above, you could face up to a year in the county jail, and/or up to $2,000 in fines.

When a Weapon is Used During the Assault

If you had a weapon in your possession during the alleged assault (a gun, knife or other weapon), or if you used a method of force which had a high likelihood of causing great bodily injury during the assault, you might be charged under Penal Code 245(a)(1), “assault with a deadly weapon.”

Assault with a deadly weapon is considered a wobbler, meaning it could be charged as a felony or a misdemeanor. If you are charged with a felony for your assault with a deadly weapon, you could serve from two to four years in county jail. 
If you are charged with a misdemeanor for your assault with a deadly weapon, you could spend up to a year in county jail.

Defenses to the Crime of Assault

Depending on the circumstances surrounding your charges of assault, your defense attorney may be able to use one of the following defenses on your behalf:

  • There was no intent on your part to inflict violence or force. Perhaps you don’t even have the ability to inflict force on the alleged victim because you physically don’t have the strength, or are too ill. 
    Or, perhaps you are involved in a bar brawl. You are pulled away by your friends, and from across the room you are still swinging your fists. Since you could not have actually connected with the other person, you could not be guilty of assault.
  • You were defending yourself or another person. You had a reasonable belief that you or another person was in imminent danger of bodily injury, you believed the use of force was the only way to defend against that danger, and you used no more force than necessary.
  • You did not act in a willful manner. Perhaps in your situation your actions were misinterpreted by the other person, or your actions were totally accidental. 
    Perhaps the alleged victim misinterpreted your actions. 
  • You are innocent and/or were falsely accused. It is far too easy for a person to claim assault, since, under California law, you don’t actually have to touch him or her to be charged with assault.

The Cost of an Assault Conviction in San Diego

In addition to the penalties you will face for a San Diego assault conviction, you may find there are additional consequences, some of them very far-reaching. 
Your assault will go on your criminal record, which is available to employers as well as those who might rent you a home. 
You could find it difficult to obtain a job you are otherwise well-qualified for, to obtain a professional license, to obtain a government student loan or to find a place to live.
That’s why it’s important to have a San Diego criminal defense lawyer like Pedro Bernal on your side. He understands the subjective nature of assault charges and what prosecutors look for and he’ll aggressively defend your rights.

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