Actual Case

Tom played soccer in an adult league.  One day there was a player on the opposing team who was playing very aggressively – jumping into people, running over others, and knocking the opponents down.  During one point of the game, the aggressive player ran into Tom, knocked him down, and then spiked Tom when the player scrambled to his feet.  Tom lost it and took the opponent down and started choking him. 

Through the use of my talented investigator I was able to gather statements from many of Tom’s teammates attesting to how aggressively the opponent was playing.  I was also able to obtain many character letters from Tom’s co-workers and family that demonstrated that Tom was a very peaceful and law-abiding person.  Through my efforts I was able to convince the D.A. to allow Tom to go to some anger management classes and then to dismiss the charges against Tom.


P.C. 240, or assault, is an intentional act by one person that creates an apprehension in another of an imminent, harmful, or offensive contact.

To prove that the defendant is guilty of assault under P.C. 240, the prosecution must prove the following facts or elements:

  • The defendant did an act that by its nature would directly and probably result in the application of force to a person;
  • The defendant’s act was willful;
  • When the defendant acted, he/she was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone; and
  • When the defendant acted, he/she had the present ability to apply force likely to cause harm to another person.


Any attempt to punch, slap or kick another person qualifies as an assault. The attempt does not need to be successful (actually landing the punch, slap or kick is considered battery, which is a separate offense.) Similarly, throwing an object at, or spitting at another person is an assault, even if you miss the target.

Here are some examples of assaults:

Al and Steve are at a party at a mutual friend's house. They have never gotten along and an argument starts between them. Al takes a swing at Steve. Al can be charged with a simple assault whether or not the punch successfully lands.

Frank is throwing a back yard barbecue for some friends and his guests are having a good time. Frank's neighbor, Dianne, leans over the fence between their properties and asks them to be quieter. Frank's friend Steve throws a beer can at Dianne.  Steve can be charged with assault whether or not the can hits the intended target.


P.C. 240, simple assault, is a misdemeanor and can result in the following penalties:

  • Three years’ Summary probation;
  • Up to six (6) months in county jail; and/or
  • A fine of up to one thousand dollars ($1000.)


Inability to carry out the threat of harm/assault:

A key element in the charge of assault is the ability of the defendant to apply force to the extent of causing harm to an individual. Without this ability the defendant can't be charged with assault.

Self-defense or Defense of Others:

If the defendant reasonably believed that they or another individual was likely to suffer physical harm from an application of force from another party and the initial force was proportional to the threat, then there is a defense against prosecution.

Lack of Intent:

A defendant who did not willfully intend to commit the assault can use the lack of intent as a defense against prosecution. If the victim misinterpreted the actions of the defendant or if the act was accidental or unintentional then this is a viable defense.

Mistaken Identity/False Accusation:

Occasionally, an innocent person is mistaken for the perpetrator of the assault but is not actually the individual who committed the crime. In a similar vein, there are incidences of false accusations or faulty identifications that lead to a situation of mistaken identity.


I have been practicing criminal defense for over 35 years.  I have represented people on hundreds of assault cases and have a proven record of success.  I will begin by combing the police reports for any helpful information and inconsistencies and then will meet with you to discuss your side of the story and to determine possible defenses.  I employ a team of investigators, legal researchers, and expert witnesses that will help present the strongest possible case. I served for over sixteen years as a Judicial Officer of the Sacramento Superior Court and have established key relationships that can be used to greatly benefit my clients.  I will aggressively fight for you to get you the best possible result on your assault case including taking the case to trial if needed.  Call Foos Gavin Law Firm at (916) 779-3500 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. for a no-cost initial consultation."