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Assault FAQs – Penal Code Section 240

California Assault Frequently Asked Questions

Is there a difference between an assault charge and a battery charge?

Yes, there is a difference between an assault charge and a battery charge. Battery, under California Penal Code Section 242, is defined by the state of California as willful use of force or violence on another person. Any physical contact to which the other person has not consented can be construed as battery. Assault, under California Penal Code Section 240, essentially, is defined as an attempt to commit battery.

Therefore, an assault does not require any actual physical contact. An assault merely requires the defendant intended to put the victim of imminent apprehension of a harmful or offensive contact. However, in contrast, a battery requires the actual physical contact to occur.

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If I was defending myself or a loved one from another person, can I still be charged with assault?

If a skilled criminal defense attorney can show that you were defending yourself or another from imminent danger of serious bodily harm, then you can not be found guilty of assault.

However, to be charged with a crime takes very little evidence. If there is probable cause to believe that you committed an assault, then you can be charged accordingly.

Hiring a defense lawyer at or before charges are filed is critical, especially if you were acting in self-defense. An experienced criminal defense attorney can speak with prosecutors before your case is filed and negotiate on your behalf and possibly ward off an expensive and lengthy criminal case.

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If the other person does not press charges or report me, can I still be charged with assault?

Technically, even if the other person does not “press charges” you can still be charged with assault. Often, people think that the victim can control whether or not the attacker will be charged. This thought is incorrect. The only person who decides whether or not to charge you is the prosecuting attorney. However, if the alleged victim refuses to testify against you, this can prove to be a challenge to the prosecutor’s case against you.

If the assault is never reported to the authorities in the first place however, then there is little chance that you will be charged with assault, unless the victim reports at a later date. This is because if there is no police report filed, then the prosecuting agency has no grounds or evidence to bring formal charges against you.

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Can I be charged with assault if the alleged incident involved my spouse or relative?

Yes. In fact, if an actual battery occurred you can be charged under California Penal Code section 243. Under Penal Code section 243, battery on a spouse or a domestic partner as a misdemeanor. The law in California does not require the defendant to have intended to break the law, hurt someone else or gain an advantage to be charged with a battery on a spouse. The law only requires that the force was willful, meaning that it was intentional. The law in California is so harsh that one can be charged for battery for even the slightest touching either with the person or though his or her clothing.

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When is an act “willful”?

An act is willful when a person does the act on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage.

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When is there an “application of force”?

There is an application of force when a person intended a 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

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