February 5, 2010 By Wallin & Klarich

California Penal Code Section 240 defines an assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. In other words, it is some type of action that attempts to physically injure someone.

You will often hear the defendant was charged with “assault & battery.” This means that the defendant is charged with two crimes. Assault is different from battery. Assault actually does not need to cause an injury or any physical contact. Assault is just the attempt to cause the injury. Therefore, even if no one gets hurt, you can still be charged with this crime.

For example, a person might be at a bar and he might take a swing at someone. The person dodges the punch. The person who took the swing can still be properly charged with criminal assault.

Now, picture the same scenario above, but the person actually swung a baseball bat at the person and still missed. The person will likely be charged with criminal assault with a deadly weapon under Penal Code Section 245, which can be a serious felony. This can happen even though the accused did not actually strike the alleged victim.

However, it is not an assault if a person was acting in self-defense. For self-defense, a person may only use an amount of force that is reasonably necessary. So in the above example, if the person swings a punch, the person that dodges can swing back to defend himself. This would not be a criminal assault since he was acting in self-defense. However, the person that dodges cannot pull out a gun to defend himself. The amount of force is not reasonably necessary in this situation.

For more information regarding possible assault defenses in Southern California, go to www.wklaw.com and read our Assault section. You will find invaluable information regarding the charges you or a loved one is facing and the possible defense.

It is essential to talk to an experienced criminal defense attorney. Wallin & Klarich has over 30 years of experience defending the rights of our clients. Call us at (888) 280-6839 to learn more about your legal rights. We will be there when you call.

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