Is Assault a Misdemeanor or a Felony?
In California assault can be charged as either a misdemeanor or a felony in California. Whether the prosecution charges a person with misdemeanor assault vs felony assault depends on whether the defendant used a weapon, and the amount of force the defendant used. For the prosecution to convict a person of assault, it does not need to show that the defendant injured anyone, merely that the defendant attempted to cause an injury to another person. We will explain when the prosecution charges assault as misdemeanor assault vs felony assault down below.
Whether you’ve been charged with misdemeanor assault or felony assault in California, you should immediately contact an assault criminal defense attorney at The H Law Group to defend you. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.
What is assault?
In California, assault is defined as an attempt to inflict physical harm or unwanted/offensive contact upon a person. For example, if you shoot at a rival gang member and barely miss them, you may be charged with assault or assault using a deadly weapon.
California criminal law recognizes three types of assault: simple assault, aggravated assault, and assault with intent to commit a felony.
For the prosecution to convict a person of assault, the prosecution must prove the following elements beyond a reasonable doubt:
- The defendant willfully attempted
- To inflict a violent injury on the person of another, and
- The defendant had the present ability to carry out the assault
Note: People often use the term assault and battery interchangeable, but for purposes of California Law, assault refers to an attempted battery. For example, if a person attempts to punch you in the face, but misses, this would be an example of assault. However, if a person were to throw a punch and land it on another person’s face, this would be battery because he actually made contact with the person of another.
Simple assault is almost always charged as a misdemeanor in the State of California. For example, slapping another person or spitting on them would be considered a simple assault, and would be charged as a misdemeanor. If convicted of misdemeanor simple assault, a person can be punished with up to six months in county jail, as well as payment of court fees and fines. We will discuss aggravated assault, which is usually charged as a felony below.
Now that we know that simple assault is almost always charged as a misdemeanor, let’s discuss the difference between simple assault and aggravated assault.
Aggravated assault refers to a more serious form of simple assault. Usually, a person is charged with aggravated assault when the person uses a deadly weapon to commit assault, using a firearm to commit assault, assaulting a police officer, or assaulting a public official.
With aggravated assault, the prosecutor has the discretion to charge the assault as either a felony assault or misdemeanor assault. The prosecutor’s decision to charge aggravated assault as either a felony or a misdemeanor depends on the following factors:
- The defendant’s criminal record
- The amount of force used by the defendant
- Whether the defendant used a weapon, deadly weapon, or firearm
By now, you should know the difference between when the prosecution can charge assault as a misdemeanor vs a felony. We will now discuss the differences in penalties between felony and misdemeanor assault.
Felony vs Misdemeanor Penalties if Convicted
If the prosecution convicts a person of misdemeanor aggravated assault, he faces up to 12 months in county jail, as well as payment of a fine and court fees. However, if a person is convicted of felony assault, he faces up to four years in California State Prison. So the difference between misdemeanor assault vs felony assault makes a big difference in the severity of the punishment and the length of the prison sentence.
So, if you have been charged with felony aggravated assault, you should hire an experienced assault defense attorney at The H Law Group as he may be able to have your felony assault charge reduced into a misdemeanor assault charge.
Defenses for Misdemeanor vs Felony Assault Charges
The defenses for both misdemeanor and felony assault charges are the same. Here are some of the defenses that your attorney may be able to use to defend you regardless of whether you were charged with misdemeanor assault or felony assault:
- The defendant did not assault the alleged victim
- The defendant assaulted the alleged victim but did so in self-defense or the defense of others
- The defendant is a victim of mistaken identity
- The defendant is being falsely accused of assault
Immigration Consequences for Misdemeanor vs Felony Assault
Simple assault charges are unlikely to have negative immigration consequences; however, aggravated assault can have negative immigration consequences because it’s considered to be an aggravated felony. So, a person who is convicted of aggravated assault can be marked as inadmissible or deported from the United States. To know whether you can be deported or marked as inadmissible to the United States, you should contact an experienced immigration attorney to evaluate your specific case.
Can you Get an Assault Conviction Expunged?
A simple assault conviction, which is always charged as a misdemeanor can be expunged by filing a petition to have it expunged (removed) from your criminal record. That said, a felony aggravated assault conviction cannot be expunged if you served any prison time. However, if you’re convicted of misdemeanor aggravated assault, and you do not serve prison time, you can have the conviction expunged from your criminal record. To know whether the conviction can be removed from your record, you should contact an experienced assault defense attorney and ask them about whether the conviction can be removed from your criminal record.
Contact an Experienced Misdemeanor and Felony Assault Defense Attorney
If you have been charged with misdemeanor or felony assault, you should immediately contact an experienced assault defense attorney at The H Law Group to defend you and keep you out of jail or prison. Our attorneys have represented thousands of clients, so they have the knowledge and experienced to achieve the best possible results for you. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404. Also, we hope that we answered the question of whether assault is a misdemeanor or a felony. For more information, call us.