Assault (without a weapon or without aggravation) is in violation of Penal Code Section 240 and is considered a misdemeanor.
An assault is an unlawful attempt, combined with the present ability, to commitment harmful or offensive contact to the person of another. The attempt to assault somebody must be unlawful. We know everyday lawful assaults occur during football games, boxing matches and other sporting events. In order to prove the attempt is unlawful, 2 factors are always present in an assault; these factors are:
- The intention to commitment harmful or offensive contact with another person, and;
- There must be an act to harm the other person.
In addition, there must be the present ability of the suspect to carry out the impending contact. It is not required that the victim actually suffer bodily harm. The act of attempting to harm or strike another person is a can be considered a criminal violation, and can be considered as an assault on its own merits, even if for some reason the suspect was not able to complete the actual assault.
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