Practice Area


Actual Case #1

In People v. Victor S - Case No. 4SR00760, my client was accused of pointing a gun at his wife and threatening to kill her. When the police arrived to the home of my client and his wife after she called 911, the police recovered several handguns that were stolen and some that were not registered to my client. His wife gave a full statement to the police implicating my client as to the assault. My client was ultimately charged with Assault, 2 counts of brandishing a handgun, and three counts of theft. The prosecutor claimed he stole the 3 handguns that the police recovered. I was successful in getting the Judge on my side on this one as we went into the Judges chambers and I reminded the Judge that I was confident that I would AT LEAST hang the jury and that my client was not afraid to go to trial. The prosecutor offered a disturbing the peace misdemeanor that we settled this case for.


The Criminal Offense Known as Assault:

What Constitutes An Assault?

An assault offense is considered the intentional application of force, that was known to likely result in the creation of a bodily injury to another individual.

Under What Penal Code is the Assault Offense?

Depending on the nature or type of assault, it can fall under various penal codes or subsections. However generally Assault is listed under Penal Code Section 240 being defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury to another."

What Are the Penalties For Assault?

Again, depending on the nature or type of assault. the penalties can vary, such as those that involve assault on special persons like peace officers etc. For Simple Assault under Penal Code 240, the penalties are;

  • The imposition of a fine, not to exceed $1,000 dollars
  • Confinement in a county facility, not to exceed six months.
  • Both confinement coupled with a fine.

What Are the Legal Defenses To A Charge of Assault?

The exact legal defenses vary depending on the nature of the assault. The most common legal defenses against a charge of assault are listed below:

The Inability to carry out the threat of harm/assault:

A key element in the charge of assault is the ability of the individual to apply force to the extent of causing harm to an individual. Should this ability be nonexistent, in the case of the defendant, the defendant can not be charged with assault.

Defense of Self or Others:

If the commission of an act that was likely to cause or bring harm to another individual, was undertaken due to a reasonable belief that the person committing the act of harm or another individual nearby was likely to suffer physical harm from an application of force from another party and the initial force was in proportion to the threat, then there is a defense against prosecution.

Lack of Intent:

An individual, who is suspected of assault, but who did not willfully intend to commit the assault can have the lack of intent as a defense against prosecution.

Mistaken Identity/False Accusation:

Occasionally, an individual is mistaken as the perpetrator of the assault yet is actually not the individual who committed the crime. In addition, there are times of false accusation or mistaken statements that bring cause to a situation of mistaken identity. This defense against prosecution requires special handling by the defense and therefore it is highly recommended that attorneys with experience in cases involving the methodology of investigation be contacted for the defendant.

Special Note Concerning Intoxication Prior to and During an Assault:

Under the laws of the State of California, an individual who commits a crime while voluntarily intoxicated can not use said intoxication as a defense against prosecution. The basis for this law is there is an element of personal responsibility involving the intake of drugs and alcohol and the detrimental effects on mental cognition and reasoning. Thus individuals who consume alcohol and drugs are aware of these effects and thus are liable for any crime that occurs while suffering said effects. However, should an individual be able to demonstrate that the intoxication was involuntary, there is a defense against prosecution.

Questions Concerning Assault under Penal Code Section 240:

How does the prosecutor prove assault under the Penal Code Section 240?

The prosecutor must demonstrate or prove certain elements and facts related to the crime. These elements and or facts are that the individual in question committed an act that by its very nature would directly and in all probability allow an application of force to be applied to another party or individual. That this conduct was willful and that the individual was aware, to any reasonable person, that said action would lead to an application of force that would result in bodily injury to another person or individual. In addition, the prosecutor must show that the ability to apply such force was present at the moment of the assault.

Who Is Able to Be Charged Under Penal Code Section 240?

Any physical contact, directly or indirectly can be considered an assault, regardless of the exact level of force if the conduct was intentional, and the individual who is to be charged had the ability to conduct said assault. This includes assault conducted via another instrument.

Is Assault a Misdemeanor or Felony?

Under Penal Code Section 240 there are various levels of assault. A simple assault, in the State of California, is classified as a misdemeanor. Depending on the circumstances and situations of an individual case, the charge can be one of an elevated status such as an Assault with a Deadly Weapon which arises to the level of Felony. Regardless, the penalties for assault can offer severe consequences such as probation, parole or more signification results such as jail and or prison time.

Related Offenses to Assault:

There are related offenses that can occur which coincide with an assault or as an extensions of an assault. These include Battery, Assault with a Deadly Weapon and Assault with a Firearm on a Peace Officer or Fireman. These are detailed further below.

Battery: Penal Code Section 242:

Penal Code section 242 details California's Battery Law. Battery is where an individual unlawfully and with intent, makes physical contact with another individual, in a harmful or offensive manner, which causes the individual to suffer serious bodily injury. In effect, battery can not occur outside the commission of an assault but an assault can be committed without physical contact, thus not causing battery.

Assault With a Deadly Weapon: Penal Code Section 245(C):

This section directly relates to Assault With a Deadly Weapon On A Peace Officer or Firefighter with an instrument other than a firearm. An assault is committed when an individual uses any weapon other than a firearm or any means to produce or potentially produce bodily injury on a peace officer or firefighter. In addition, the individual committing said offense knows or should reasonably know that the individual upon which the offense is being committed is a peace officer or firefighter who is engaged in the performance of their duties. Consequences can be, but are not necessarily limited to, confinement in a state facility for three, four or possibly five years.

Assault With a Firearm On a Peace Officer or Firefighter: Penal Code Section 245(d)

This type of assault is charged when an individual uses a firearm to assault a person who is a peace officer or firefighter who is engaged in the performance of their duties. Additionally, the assault charged is furthered by the fact the individual is aware or should be reasonably aware that the individual is engaging in their duties and they are a peace officer or firefighter. Should an individual be convicted of assault under this section, the consequences are but are not limited to, confinement in prison for four, six or eight years.

We Can Assist You!

Should you or someone you know be charged with Assault, we can help. We are the Law Offices of Jeff Voll and we have the resources, experience and the extensive knowledge required to help you or the person you know get the best results for your case. Our firm has an elite team of individuals who were former prosecutors, researchers, investigators and experts in their fields and who are all dedicated to defending the rights of our clients. Should you or someone you know require an Assault Defense Attorney, please contact us as soon as possible for a free consultation so we can begin fighting for you. Our number is 323-467-6400, let us go to work and defend you.

Trust the Only Attorney You Will Find with 100 Criminal Cases Dismissed in a 1 Year Time Frame. Is Your Case the Next Dismissal?

Free Consultation

Contact Me Today

The Law Offices of P. Jeff Voll Inc. is committed to answering your questions about criminal law issues in California.

I offer a free consultation and I’ll gladly discuss your case with you at your convenience. Contact me today to schedule an appointment.