Penal Code section 240 defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Simple assault is a misdemeanor punishable by up to six months in county jail.
Unfortunately, the system sees a far greater number of felony assaults. Felony assaults are usually charged under either Penal Code section 245(a)(1), assault with a deadly weapon or Penal Code section 245(a)(4), assault with force likely to commit great bodily injury. Both 245(a)(1) and 245(a)(4) are wobblers, meaning they can be filed as either a misdemeanor or a felony. A misdemeanor conviction of 245(a)(1) or 245(a)(4) is punishable by up to one year in county jail. A felony 245(a)(1) or 245(a)(4) is punishable by 2, 3, or 4 years in state prison. If the judge finds there are unusual circumstances in the case, a person can be granted probation rather than serving time in state prison.
A felony conviction for 245(a)(1), assault with a deadly weapon, is a serious felony (a strike) and can have far reaching implications. A felony conviction for 245(a)(4), assault with force likely to cause great bodily injury, is not a serious felony and therefore not a strike. Any felony conviction of 245(a)(1) or 245(a)(4) is not 1170(h) eligible, meaning that any non-probation sentence must be served in state prison, not county jail. Although 245(a)(1), assault with a deadly weapon, is a strike, a person would still be eligible for half time credits in state prison.
If during an assault a person commits great bodily injury on another person, the prosecution can charge an enhancement, which would add three additional years to any prison sentence. An assault with a great bodily injury enhancement is a violent felony. Therefore a person would not be eligible for half time credits in prison and any state prison time would have to be served at 85%.
A battery is the touching of someone in a harmful or offensive manner that is willful and unlawful. A simple battery is a misdemeanor punishable by up to six months in county jail. The punishment can increase to one year in county jail if the battery is committed against a certain type of person, such as a peace officer, a custodial officer, emergency persons, a spouse, or person with whom you have a dating relationship.
If the battery results in serious bodily injury on the victim, you could be charged with a felony. Penal Code section 243(d), battery causing serious bodily injury, is punishable by 2, 3, or 4 years in state prison. A person convicted of battery causing serious bodily injury who is not granted probation cannot serve their time locally, they must be sent to state prison. Battery causing serious bodily injury is one of the enumerated serious felonies, making it a strike in California.
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