What is Assault?
There are many crimes that have a base version, often known as a “simple” version of that crime. All “simple” crimes have enhanced versions of that crime, when additional facts are proven. Assault is one of those crimes that have a “simple” version, and an “enhanced” version. This website addresses two common enhanced versions of an assault charge: Assault with a Deadly Weapon and Assault on a Public Official. This article will discuss the underlying crime known as “simple assault” as defined by California Penal Code §240 and 241, as well as other less common “enhanced” versions of the “simple assault.” These enhancements are applied based on who is assaulted, or where they are assaulted.
The enhancements that will be discussed in this article include: (1) Assault on a Custodial Officer, (2) Assault on School or Park Property, (3) Assault while on Public Transportation, (4) Assault on a Peace Officer of a School District, (5) Assault on a Highway Worker, (6) Assault on a School Employee, (7) Assault Against Jurors; and (8) Assault on a Member of the United States Air Force. In order to be convicted of these enhanced crimes, the Prosecutor must first prove the underlying offense of Assault. There are several definitions of what constitutes an “assault”, but this article will utilize CALCRIM 915, which was drafted and approved by the Judicial Council of California Advisory Committee on Jury Instructions to represent all the elements of Assault, which the Prosecution must prove beyond a reasonable doubt in order to obtain a conviction. CALCRIM 915 sets forth four (4) elements that the Prosecution must prove before the Defendant can be found guilty of Assault:
- The Defendant did an act that by its nature would directly and probably result in the application of force to a person;
- The Defendant did that act willfullyi;
- When the Defendant acted, they were aware of facts that would lead a reasonable person to realize that their act by its nature would directly and probably result in the application of force to someone; and
- When the Defendant acted, they had the present ability to apply force to a person.
The Prosecution must prove all four elements of the crime in order to obtain a conviction against you. Thus, one very simple way to obtain an acquittal is to negate one of the elements of the crime. Having an attorney representing you will provide the best opportunity to negate the elements of the crime you are accused of. The attorneys at Los Angeles Criminal Lawyer (“LACL”) have substantial experience representing clients who are accused of criminal conduct exclusively. Having decades of combined experience has made our attorneys intimately familiar with the elements of Assault, and has allowed us to bring the very best defenses to Court on behalf of our clients. At Los Angeles Criminal Lawyer, we pride ourselves on providing exceptional service to our clients. If you or a loved one has been charged with assault, it is only natural that you want to understand the criminal process, and the charges against you. This article will explain each element of the crime, and provide examples of conduct that satisfies the elements and conduct that does not satisfy the elements.
What Does “The Defendant did an act that by its nature would directly and probably result in the application of force to a person” Mean?
This element of the crime of assault seeks to punish wrongful conduct, regardless of whether or not physical force is actually applied to another person; if physical force is applied to another person, the Defendant will be charged with Assault, and Batteryii. In essence, to prove this element of the crime, the Prosecution need only appeal to the juror’s common sense. This element is very difficult to disprove, but it is possible. There are two examples set forth below, to show what does, and does not, constitute an act that by its nature would directly and probably result in the application of force to a person.
Damian takes his golfing equipment to the top of the hill overseeing a local gated community. Damian sets up, and lines up his shot towards the gated community. After Damian hits a long ball, it crashes through the bathroom window of Vivian while she is showering; the Prosecution will likely be able to prove the first element of assault against Damian. The reason for this is that the act of hitting a golf ball into a residential neighbor is the type of conduct that by its nature would (1) directly and (2) probably result in the application of force to another person. The ball itself would directly cause the physical force to another person, and the act of hitting the ball towards the residential neighborhood would probably result in someone being hit by the golf balliii.
Damian takes his golfing equipment to the same hill, which oversees a local gated community. This time, he sets up facing away from the gated community. Unfortunately, Damian hooks the ball significantly, and veers into the window of another house, where Victor is. The Prosecution will have a much harder time proving the first element of Assault against Damian. While it is still true that the gold ball itself could directly cause physical force on another person, the act of hitting the ball away from a place where people are is less likely to result in someone being hit by the golf ball; the probable aspect of this first element would be open to debate.
As mentioned above, it is difficult to disprove this element but not impossible. In the second example, an attorney from Los Angeles Criminal Lawyer would present evidence to the jury of how large the area Damian was attempting to hit the golf ball was, how rarely anybody was present there, and just how significantly someone would have to hook a golf ball to have it go into the houses. Utilizing this evidence, Damian’s attorney would attack the requirement that the act would probably result in the application of force to another person; it is impossible to speculate how a jury would rule on this argumentiv. The next element the Prosecutor must prove, that the Defendant acted “willfully”, is slightly more problematic for the Prosecutor but does not require much proof.
What Does it Mean to Act “Willfully” as it Relates to Criminal Conduct?
As mentioned throughout this website, in numerous articles, crimes are broken into two types based on the “intent” the law requires the Defendant to have in order to be convicted. In turn, these “intent” requirements limit which defenses the Defendant can raise to defeat the Prosecutor’s case against themv. Assault is a general intent crime, and simply requires that they intend to do the act that gives rise to the Assault charges against them, the Defendant does not need to intend the outcome of their actions. There has been some debate in the legal community as to whether this definition is sufficient to truly embody what it means for the Defendant to have acted “willfully.” It has been suggested that the correct definition of willfully would state that a person acts “willfully” when they do the act on purpose, they know what they are doing, and they intend to do that actvi. This definition seems more in line with what is required, as many defenses to this element centers on the fact that the Defendant did not act intentionallyvii, or that they did not know what they were doingviii.
What Does “When the Defendant acted, they were aware of facts that would lead a reasonable person to realize that their act by its nature would directly and probably result in the application of force to someone” Mean?
While the negative version of this element is usually raised as a defense to the crime of assault, the CALCRIM jury instructions properly place the burden of proving that the Defendant was aware of the requisite facts on the Prosecution. This is another “common sense” element the Prosecution will have to prove to the jury. Unlike the first element however, this element is much more susceptible to skilled advocacy by an experienced attorney. The attorneys at Los Angeles Criminal Lawyer have experienced hundreds of jury trials, and know precisely what facts to introduce to the jury to convince them that the Prosecution has not met their burden. In light of the definition of “willful” above, and footnote viii below, a simple example of lack of knowledge will be provided.
DeVante, the 18 year-old son of a career marine, was snooping in his father’s office when he came upon a pen he had never seen before. DeVante took the pen with him to work at the local Starbucks. While taking a patron’s order, DeVante pointed the pen at the Patron and clicked the back of the pen. Unbeknownst to DeVante, the pen was actually a pen gun, which shot small caliber bullets when the back of the pen was clicked. The bullet missed the Patron, and shattered the glass behind him. In this case, it is not enough to say that shooting a pen gun is conduct that by its nature is likely to cause direct physical contact with another person, and DeVante clicked the pen gun “willfully.” The Prosecutor will be unable to convict DeVante unless he can show that DeVante knew, or should have known, that the pen was actually a pen gunix.
What Does “When the Defendant acted, they had the present ability to apply force to a person” Mean?
The final element the Prosecutor must prove in order to maintain a conviction for “simple assault” is that at the time the Defendant engaged in the conduct willfully, with the knowledge of the potential effect, the Defendant was actually able to apply force to another person. There are three elements, which must be met for a defendant to have present ability. First, the defendant must equip himself with the means to carry out a battery. Second, he must position himself in a location such that he can utilize those means. Third, he must be able to inflict injury on that occasionx. The next example will generally mimic the Chance case from the California Supreme Court, which focuses almost exclusively on this element of assault.
Dave sees Officer Vince, and takes off running with a pistol in his hands. Dave ducks behind a trailer, and Officer Vince suspects that Dave is lying in wait for him. Officer Vince goes around the other side of the trailer and sees Dave with his gun trained on the front of the trailer, where Officer Vince would have gone if hadn’t suspected Dave’s motives. Dave surrendered and it was subsequently found that the safety was off, there were bullets in the clip but none had been moved to the chamber. Dave will be found to have satisfied the present ability requirement of Assaultxi. The first element of present ability is satisfied because Dave had a gun with bullets it, even if the bullet was not yet in the firing chamber. Second, Dave was situated in a position to fire at the front of the trailer if Officer Vince had come that way. Third, “present ability” requires capable of inflicting injury on a given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury. The only steps Dave needed to take were to pull a slide on his gun, and face Officer Vince. The Chance case makes clear that this is enough to satisfy the present ability element of assault.
The next section will detail the punishments associated with “simple assault”, and will then briefly detail the “enhanced” charges and penalties associated with the identity of the person assaulted, or the location of where the person is assaulted.
I Have Been Convicted of Simple Assault, What Penalties Could I be Facing?
It is unfortunate, but not every criminal case can be beaten; this is true regardless of the caliber of your attorney. The attorneys at Los Angeles Criminal Lawyer have lost before; however that is not the end of what a LACL attorney can do for you. After the trial phase of the case against you, there is a sentencing phase where the Prosecutor and your attorney advocate for lenient, or harsh, sentencing. During this time, having skilled representation can have the very real effect of reducing time in jail, or skipping that necessity altogether. If you have been convicted of a “simple assault” without any of the “enhancements”, which will be discussed below, you may be fined up to one-thousand ($1,000) dollars and/or imprisonment in county jail for up to six (6) months. Skilled representation can minimize the penalties you might face. However, depending on who you assaulted, or where you assaulted someone, the penalties can become a little more problematic.
Assault on a Parking Control Officer
As you can imagine, parking enforcement can be a high conflict job. If you commit assault against a Parking Control Officer, who is performing their job, and you know they are a Parking Control Officer, you will face a fine of up to two-thousand ($2,000) dollars and/or up to six (6) month in county jail.
Assault on a Peace Officer, EMT, Mobile Intensive Care Paramedic, Nurse, Lifeguard, Traffic Officer, Animal Control Officer, Code Enforcement Officer, Parking Control Officer, or Search and Rescue Member
While the definition of each of these classes of potential victims is beyond the scope of this article, the definitions apply common sense. If you have committed an assault on a member of the classes of people listed above, and they are in the course of their duties, and you know those facts, you will be punished with a fine of up to two-thousand ($2,000) dollars and/or imprisonment in county jail for up to one (1) year.
Assault on a Custodial Officer
California Penal Code §241.1 makes it punishable by up to one (1) year in county jail to assault a custodial officer. A custodial officer is defined by California Penal Code §831 and 831.5.
Assault on School or Park Property
California Penal Code §241.2 makes it a punishable offense to commit an assault on school property, or park property. §241.2(b) and (c) define what constitutes a “school” and a “park” respectively. If you are not a minor, and are found to have committed an assault in either of these locations, you will be fined up to two-thousand ($2,000) dollars and/or sentenced to imprisonment in county jail for up to one (1) year. If you are a minor at the time of the offense, the Court may also impose counseling as a condition or probation.
Assault while on Public Transportation
California Penal Code §241.3 makes it punishable by a fine of up to two-thousand ($2,000) dollars and/or imprisonment in county jail to commit an assault against another person on the property of, or the motor vehicle of, a public transportation provider. §241.3(b) and (c) defines “public transportation provider” and “on the property of” respectively.
Assault on a Peace Officer of a School District
California Penal Code §241.4 punishes an assault on a peace officer of a school district with mandatory incarceration for up to one (1) year in county jail. Since the punishment is relatively harsh for an assault charge, §241.4 requires that the victim be a peace officer of a school district who is presently engaged in the performance of their official duties, and the Defendant is aware of that fact.
Assault on a Highway Worker
California Penal Code §241.5 punishes the assault on a highway worker with a fine of up to two-thousand ($2,000) and/or imprisonment in country jail for up to one (1) year. §241.5(b) defines what a “highway worker” is. Much like the offense set forth in §241.4, to be sentenced for this crime, the highway worker must be performing his duties as a highway worker, and the Defendant must know that this is the case.
Assault on a School Employee
California Penal Code §241.6 punishes an assault on a school employee who is engaged in their duties, or an assault on a school employee in retaliation for the performance of the victim’s duties as a school employee, with a fine of up to two-thousand ($2,000) dollars and/or incarceration in county jail for up to one (1) year. This charge is slightly different than the previous charges, and more similar to Assault on a Public Official in the sense that the assault does not have to occur during performance of the victim’s duties, it can also occur in retaliation for the performance of those dutiesxii.
Assault on a Juror
California Penal Code §241.7 punishes an assault on a juror with a fine of up to two-thousand ($2,000) and/or imprisonment in county jail for up to one (1) year. To be found guilty of this charge, a jury must have been empaneled in a case against you (civil or criminal) and the assault must occur during or after the conclusion of that casexiii.
It should be noted that an assault is known as a “wobbler” offense in California, which means the Prosecutor can bring the charges against you as either a misdemeanor or a felony. Having competent representation advocating on your behalf will provide you the best opportunity to have the charges against you brought as a misdemeanor. The attorneys at Los Angeles Criminal Lawyer have ample experience negotiating with the Los Angeles District Attorney, and will fight to have the least severe charges possible brought against you.
I Have Been Charged with “Simple Assault”, What Can Los Angeles Criminal Lawyer Do to Help Me?
Every year, arrests for assault make up roughly 20% of all arrests in California. Assault is a very common criminal charge, and can come in many shapes and forms, as shown by the list of assault crimes above. If you, or a love one, have been arrested for assault, it is imperative that you contact a competent attorney immediately. The attorneys at Los Angeles Criminal Lawyer have decades of combined experience exclusively representing clients accused of criminal conduct; including all forms of assault charges. Having experienced counsel in your corner from the moment you are arrested will ensure the best outcome to your case. Your LACL attorney will be by your side throughout the entire process making sure that your Constitutional rights are protected, and building a tailored defense for you and your case; at LACL, we do not believe that “cookie-cutter” defenses are successful or even ethical. Your attorney will be available to discuss your case at all times of the day. In addition to protecting your rights, your LACL attorney will raise every defense available for your case. In the event that you are convicted of Assault, your LACL attorney will advocate for lenient, or event alternative, sentencing in an effort to avoid you having to spend even one additional minute in county jail. At LACL we fight for you like you are our only client.
If you, or a loved one, have been arrested or assault, contact Los Angeles Criminal Lawyer at 310-502-1314 for a FREE, no obligation, consultation.
i All crimes require the Defendant to have certain “intent” when committing the act constituting the crime, there are “general intent crimes” and “specific intent crimes”; the type of intent required for the commission of the crime will dictate which defenses are available. Assault is a general intent crime, and “willfully” is the standard phrase to indicate that a crime is a general intent crime.
ii For a detailed discussion of the crime, please see our page titled “Battery”.
iii Each example is designed specifically to address the element it is placed under, there is much more to analyze from Damian’s behavior.
iv There are a few cases, which suggest that a jury would find this element satisfied based on the facts in Example 2. People v. White (2015) 241 Cal.App.4th 881 [194 Cal.Rptr.3d 323], reh'g denied (Nov. 30, 2015), review denied (Jan. 27, 2016) (The Court stated that the Prosecution must prove the Defendant “(1) willfully committed an act which by its nature would probably and directly result in injury to another and (2) was aware of facts that would lead a reasonable person to realize that a battery would directly, naturally, and probably result from their [Defendant’s] conduct.” Defendant threw a showerhead through a steel-reinforced window in a juvenile detention facility; it did not matter that it was unlikely that the glass would break.
v The two types of intent are known as “general intent crimes” and “specific intent crimes.” The phrase “willfully” in a criminal statute indicates that it is a general intent crime, while “with the intent to…” indicates a specific intent crime; Assault is a general intent crime.
vi California Crim. Jury Instr. Companion Handbook § 5:1, California Crim. Jury Instr. Companion Handbook § 5:1
vii Seizure, fainting, involuntary tic, etc.,
viii Also known as a mistake of fact: operating a device they could not have known might cause physical force to be applied to another person.
ix If the Prosecution introduced testimony from DeVante’s father that he had told DeVante the pen was a pen gun that would be sufficient to support a conviction.
x People v. Chance (2008) 44 Cal.4th 1164, 1172 [81 Cal.Rptr.3d 723, 728, 189 P.3d 971, 976]
xi For historical accuracy, assault was just one of many charges the Defendant in Chance was charged with. The convictions also counted as a “third strike”, and the Defendant was sentenced to incarceration for a period of seventy (70) years to life.
xiiFor example, a student who was given detention might see the teacher who gave them detention at the mall and assault the teacher there; this would be sufficient to maintain a conviction under §241.6.
xiii If it has been long enough since the conclusion of the trial, a defense may be raised that the assault was unrelated to the fact that the Victim was a juror in a case against you; it I unlikely the Prosecutor would pursue this charge in the first place unless the Defendant’s motive was clear.