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  • Writer's pictureBlair Goss

What Makes an Assault a Felony in California? | Goss Law Firm

An assault in California could be either a misdemeanor or a felony, depending on the circumstances of the case. The difference between these two types of assault charges is the punishment awarded by the court under the criminal justice system.

Facing serious assault charges can be incredibly stressful, especially if the defendant had no intentions to cause harm. Fortunately, the reputable criminal defense attorneys at Goss Law have extensive experience fighting convictions and proving their client's innocence. They can provide the defendants with much-needed legal guidance and help build a strong criminal defense case.

What Is an Assault?

What Is an Assault?

Under California law, assault is a term that refers to an unlawful attempt to inflict physical harm to another individual. There are two elements that need to be present for a crime to be an assault, and these include the present ability to inflict harm and an attempt to hurt another person.

There are three different types of assault, and these include the following:

  1. Simple assault: A simple assault refers to a threat or an attempt to cause an injury to another individual. It is an unlawful physical attack where there is no display of weapons or serious bodily injuries. A person who tries to attack another but misses, for example, is a form of simple assault.

  2. Aggravated assault: This term refers to the unlawful attack by a person upon another, with the sole purpose of inflicting severe and aggravated bodily injury. It is a much more serious form of crime than simple assault but a lesser offense than felony assault. A firearm discharge in an attempted robbery and an assault of a police officer or public official are some examples of aggravated assault.

  3. Assault with an intent to commit a felony: A felony assault refers to a person who intentionally causes serious or great bodily injury to another person or deliberately uses a weapon to commit assault. There are three key components involved, and this includes the intent to cause injury, the use of a deadly weapon, and the actual physical injury.

Although many people use the term assault and battery interchangeably, the two are different, as they contain unique elements.

What Is a Misdemeanor Assault?

Under California law, a simple assault is often charged as a misdemeanor. The court would charge slapping another person or spitting on their face, for example, as a misdemeanor, which is punishable by up to six months in county jail, a maximum fine of $1,000, or a combination of both types of punishments.

What Makes an Assault a Felony in California?

Since aggravated assault is a greater crime than a simple assault, as it involves a violent injury, it is a wobbler offense. A prosecutor has discretion on whether or not they want to charge the crime as either a misdemeanor or a felony after assessing the circumstances of the case.

There are certain factors that the prosecutor must consider before charging the crime as either a misdemeanor or a felony, and these include the following:

  • The defendant's prior criminal history

  • Whether the defendant uses a deadly weapon or firearm

  • The level of force used by the defendant to produce great bodily injury

  • If the defendant assaults a police officer, public official, or emergency personnel

  • The present ability to commit a violent injury

After assessing the facts of the case, if the prosecutor decides to charge the offender with a misdemeanor aggravated assault, the defendant may face up to 12 months in county jail, a maximum fine of $10,000, probation, restitution, weapon confiscation, community service requirement, or a combination of these different types of punishments.

However, if the prosecutor charges the defendant with a felony assault, the defendant could be looking at all the punishments mentioned above, but instead of 12 months in county jail, it is up to four years in state prison.

Those who have been charged with a misdemeanor or a felony and believe that they are being wronged should contact an experienced criminal defense attorney for legal representation. The skilled lawyer will help assess the case and build a strong defense to improve the defendant's chances in court. They can also answer questions like What are the exceptions to the statute of limitations in California?

What Are the Available Defenses for Assault?

What Are the Available Defenses for Assault?

Whether the prosecutor charges an assault as a misdemeanor or a felony, there are a few legal defenses that an experienced criminal attorney in Sacramento can use to reduce the severity of the punishments. Some of these include the following:


Under the circumstances of the assault, the defendant may have believed that they were under threat or in danger, resulting in them taking action as a way of self-defense.

When using this legal defense, the defendant must prove the following:

  • The defendant was in danger;

  • They faced a threat;

  • There was a need for immediate physical force to avoid potential injuries; and

  • The defendant exerted enough force to defend themselves rather than intentionally harm the other individual.

Defense of Another Person

The defendant could have the charges removed if they can successfully prove in court that they came to the defense of another person. They must prove the elements of this legal defense, which is similar to that of self-defense.

Defense of Property

Under California law, individuals can take action to protect their personal property or real estate. This is another type of self-defense, and to successfully use it in court, the defendant must prove the following:

  • The defendant believed that there was an immediate threat to their property; and

  • They only used a reasonable amount of force in a bid to ward off that threat.


Another legal defense that the defendants could use is consent. In some situations, the action could be consensual but misconstrued as an assault, such as a theatre performance in public or a private sexual act that goes a little too far.

The defendant must prove that they had consent from the other party to reduce the charges levied against them or have the case dismissed.

Mistaken Identity

Sometimes, the prosecutors may have had the wrong person due to unreliable witness statements. The defendant must prove to the court that they're not the individual the prosecutor believes them to be.

Inability to Commit a Violent Injury

The defendant could argue that they did not have the ability to commit a violent injury, as the deadly weapon they possessed did not work.

An unloaded firearm at the time of the incident, for example, can make it impossible for the defendant to inflict severe harm on the alleged victim.

Schedule a Free Consultation with Experienced Criminal Defense Attorneys in California

Those who believe that they shouldn't be facing felony charges in Sacramento, California, must call to schedule a free consultation with experienced criminal defense attorneys at Goss Law.

Its legal team can help conduct an investigation, gather evidence to develop a strong case and defend the defendant's rights in court by fighting the felony conviction.


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