Criminal Defense Attorney for Assault

DEGREES OF ASSAULT

Understanding the Degrees of Assault

Under California law, the penalties associated with assault crimes vary significantly depending on the type of assault charge filed.  Some assaults are misdemeanors and not likely to result in any custody time.  Others are considered serious and violent felonies that carry the possibility of substantial incarceration. It is important to know what type you or your loved one are being charged with and the severity of it.

Simple Assault

Simple assault occurs when you cause the application of force to another person.  In order to convict someone of simple assault, the prosecution must prove that:

  1. The defendant committed an act that by its nature would directly and probably result in the application of force to a person.
  2. The defendant did that act willfully.
  3. A reasonable person would know that the act would result in the application of force.
  4. The defendant had the present ability to apply force to a person.

AND

  1. The defendant did not act in self-defense or in defense of someone else.

The term “application of force” means to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. There is no requirement that the touching cause an injury or that the defendant intend to injure.

 In the state of California, simple assault penalties include up to 6 months in jail and up to $1,000 in fines.

Battery

Battery is the unwanted touching or hitting of another person. You can be charged with battery even if no injuries are evident on the victim. The prosecution only needs to prove that you touched someone in a harmful or offensive way and that you did not act in self-defense or while reasonably disciplining a child.

In the state of California, battery penalties include up to 6 months in jail and up to $2,000 in fines.

Battery Causing Serious Bodily Injury – “Aggravated Battery”

Battery causing serious bodily injury, sometimes referred to as aggravated battery, occurs when the defendant commits a battery that results in a “serious impairment of physical condition, including, but not limited to, the following: loss of consciousness, concussion, bone fracture, protracted loss or impairment of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement.”  See CALCRIM 925.

The prosecution is NOT required to prove that the defendant intended to cause an injury of any kind.

Aggravated battery can be charged as a misdemeanor or felony. In the state of California, if charged with a misdemeanor, penalties include up to 1 year in jail, up to $1,000 in fines, and probation. If charged with a felony, penalties include 2-4 years in prison, up to $10,000 in fines, and probation.

Assault with a Deadly Weapon – Penal Code section 245(a)(1)

Assault with a deadly weapon occurs whenever someone assaults another person with a deadly weapon other than a firearm.

Assault with a deadly weapon can be charged as a misdemeanor or felony. In the state of California, if charged with a misdemeanor, penalties include up to 1 year in prison and up to $1,000 in fines. If charged with a felony, penalties include up to 4 years in prison and up to $10,000 in fines.

If charged as a felony, assault with a deadly weapon is a “strike” offense for purposes of California’s Three Strikes Law.

Assault with a Firearm – Penal Code sections 245(a)(2), 245(b) & 12022.5

 If the deadly weapon at issue is a firearm, the potential penalties may increase dramatically, depending on the circumstances.  Standing alone, assault with a firearm is punishable in the same manner as other assault with a deadly weapon charges.  It has a sentencing range of 2, 3 or 4 years in state prison.  However, if the firearm is a semi-automatic firearm, that range becomes 3, 6 or 9 years.

As with any other offense, you may be convicted assault with a firearm if you personally committed the crime, or if you aided or encouraged another in the commission of the crime and shared that perpetrator’s intent (Aiding and Abetting).  However, this crime is most commonly charged against a defendant who is alleged to be the direct perpetrator.  Under these circumstances, the defendant faces an additional 3, 4 or 10 years in state prison, pursuant to Penal Code section 12022.5, for personally using a firearm in the course of a felony. 

An assault with a semi-automatic firearm then becomes a felony punishable by as much as 19 years in prison. To make matters worse, the special allegation under section 12022.5 makes the crime a “violent felony,” thereby reducing the amount good conduct credit a defendant is eligible to earn during the term of imprisonment.

Assault Likely to Produce Great Bodily Injury – Penal Code section 245(a)(4)

 The crime of assault likely to produce great bodily injury occurs when the amount of force used during the commission of the assault was likely to cause, “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”  See CALCRIM 875.

This crime is punishable in the same manner as assault with a deadly weapon, with misdemeanor or felony filing discretion, and a sentencing range of 2, 3 or 4 years, when filed as a felony.

However, unlike assault with a deadly weapon, or assault with a firearm, the crime of assault likely to produce great bodily injury is not a strike, when filed by itself.

The prosecution is not required to prove that the defendant actually caused great bodily injury, only that the amount of force used was likely to do so.  If a defendant actually causes great bodily injury in the course of such an assault, then the prosecutor may file an additional special allegation under Penal Code section 12022.7.  This special allegation may be filed with any underlying felony in which the defendant personally inflicts great bodily injury.   It adds at least 3 additional years of custody time and makes the charge a strike and violent felony. 

Schedule an Appointment for an Assault Charge Consultation Today!

We understand the severity of having an assault charge on your record. If you are under investigation or accused of assault, you will need an experienced criminal defense attorney that will aggressively work to protect your rights and freedom.

We offer confidential consultations so we can discuss your options. To schedule your free initial consultation and find out how you can get the best possible outcome with assault charges, please fill out this quick online form.

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If you or a loved one needs help in one of the following areas, please fill out the form and someone from our office will respond as quickly as possible.  

Criminal Defense Attorney for Assault

DEGREES OF ASSAULT

Understanding the Degrees of Assault

Under California law, the penalties associated with assault crimes vary significantly depending on the type of assault charge filed.  Some assaults are misdemeanors and not likely to result in any custody time.  Others are considered serious and violent felonies that carry the possibility of substantial incarceration. It is important to know what type you or your loved one are being charged with and the severity of it.

Simple Assault

Simple assault occurs when you cause the application of force to another person.  In order to convict someone of simple assault, the prosecution must prove that:

  1. The defendant committed an act that by its nature would directly and probably result in the application of force to a person.
  2. The defendant did that act willfully.
  3. A reasonable person would know that the act would result in the application of force.
  4. The defendant had the present ability to apply force to a person.

AND

  1. The defendant did not act in self-defense or in defense of someone else.

The term “application of force” means to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. There is no requirement that the touching cause an injury or that the defendant intend to injure.

 In the state of California, simple assault penalties include up to 6 months in jail and up to $1,000 in fines.

Battery

Battery is the unwanted touching or hitting of another person. You can be charged with battery even if no injuries are evident on the victim. The prosecution only needs to prove that you touched someone in a harmful or offensive way and that you did not act in self-defense or while reasonably disciplining a child.

In the state of California, battery penalties include up to 6 months in jail and up to $2,000 in fines.

Battery Causing Serious Bodily Injury – “Aggravated Battery”

Battery causing serious bodily injury, sometimes referred to as aggravated battery, occurs when the defendant commits a battery that results in a “serious impairment of physical condition, including, but not limited to, the following: loss of consciousness, concussion, bone fracture, protracted loss or impairment of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement.”  See CALCRIM 925.

The prosecution is NOT required to prove that the defendant intended to cause an injury of any kind.

Aggravated battery can be charged as a misdemeanor or felony. In the state of California, if charged with a misdemeanor, penalties include up to 1 year in jail, up to $1,000 in fines, and probation. If charged with a felony, penalties include 2-4 years in prison, up to $10,000 in fines, and probation.

Assault with a Deadly Weapon – Penal Code section 245(a)(1)

Assault with a deadly weapon occurs whenever someone assaults another person with a deadly weapon other than a firearm.

Assault with a deadly weapon can be charged as a misdemeanor or felony. In the state of California, if charged with a misdemeanor, penalties include up to 1 year in prison and up to $1,000 in fines. If charged with a felony, penalties include up to 4 years in prison and up to $10,000 in fines.

If charged as a felony, assault with a deadly weapon is a “strike” offense for purposes of California’s Three Strikes Law.

Assault with a Firearm – Penal Code sections 245(a)(2), 245(b) & 12022.5

 If the deadly weapon at issue is a firearm, the potential penalties may increase dramatically, depending on the circumstances.  Standing alone, assault with a firearm is punishable in the same manner as other assault with a deadly weapon charges.  It has a sentencing range of 2, 3 or 4 years in state prison.  However, if the firearm is a semi-automatic firearm, that range becomes 3, 6 or 9 years.

As with any other offense, you may be convicted assault with a firearm if you personally committed the crime, or if you aided or encouraged another in the commission of the crime and shared that perpetrator’s intent (Aiding and Abetting).  However, this crime is most commonly charged against a defendant who is alleged to be the direct perpetrator.  Under these circumstances, the defendant faces an additional 3, 4 or 10 years in state prison, pursuant to Penal Code section 12022.5, for personally using a firearm in the course of a felony. 

An assault with a semi-automatic firearm then becomes a felony punishable by as much as 19 years in prison. To make matters worse, the special allegation under section 12022.5 makes the crime a “violent felony,” thereby reducing the amount good conduct credit a defendant is eligible to earn during the term of imprisonment.

Assault Likely to Produce Great Bodily Injury – Penal Code section 245(a)(4)

 The crime of assault likely to produce great bodily injury occurs when the amount of force used during the commission of the assault was likely to cause, “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”  See CALCRIM 875.

This crime is punishable in the same manner as assault with a deadly weapon, with misdemeanor or felony filing discretion, and a sentencing range of 2, 3 or 4 years, when filed as a felony.

However, unlike assault with a deadly weapon, or assault with a firearm, the crime of assault likely to produce great bodily injury is not a strike, when filed by itself.

The prosecution is not required to prove that the defendant actually caused great bodily injury, only that the amount of force used was likely to do so.  If a defendant actually causes great bodily injury in the course of such an assault, then the prosecutor may file an additional special allegation under Penal Code section 12022.7.  This special allegation may be filed with any underlying felony in which the defendant personally inflicts great bodily injury.   It adds at least 3 additional years of custody time and makes the charge a strike and violent felony. 

Schedule an Appointment for an Assault Charge Consultation Today!

We understand the severity of having an assault charge on your record. If you are under investigation or accused of assault, you will need an experienced criminal defense attorney that will aggressively work to protect your rights and freedom.

We offer confidential consultations so we can discuss your options. To schedule your free initial consultation and find out how you can get the best possible outcome with assault charges, please fill out this quick online form.

Table of Contents

HOW CAN WE HELP?

If you or a loved one needs help in one of the following areas, please fill out the form and someone from our office will respond as quickly as possible.