Assault on a Public Official (California Penal Code section 217.1(a)) involves an attack, or attempted attack, on any of the following individuals:
(i) POTUS;(ii) Vice-Pres. of the U.S.;(iii) governor of any U.S. state/territory;(iv) any current/former judicial officer (federal/state judge/magistrate/commissioner/referee;top official of any federal/state/territorial agency/dept.;(v) any elected official (federal/state/territorial), such as a mayor/city councilman/county supervisor/ sheriff/D.A./P.D.);(vi) any current or former deputy district attorney or deputy public defender (federal/state/territorial);(vii) police chief (municipal P.D.);(viii) any police/peace officer; or(ix) immediate family members of any of the foregoing individuals.
To be convicted of this crime, you must have been aware – or at least should reasonably have been aware — that the individual was acting in his/her/their official capacity at the time of the assault/attempted assault, even if they weren’t in uniform, acting during regular business hours, or even if they were away from their place of work at the time.
In addition, you must have specifically targeted or retaliated against him/her/them for the performance, or attempted performance, of their official duties.
Because these individuals receive special protection under California law, this offense is considered to be an “aggravated assault”, meaning that more serious penalties will typically apply as compared to:
Because this crime can be charged as either a misdemeanor or a felony, this offense is commonly referred to as a “Wobbler” (California Penal Code section 17(b)). The former conviction carries up to one year in county jail as a max sentence. The latter conviction carries a maximum (“high term”) prison incarceration sentence of 36 months.
On a final note, even if you attack a police/peace officer and cause even a slight injury, you will almost certainly be charged with the following crime instead of Assault on a Public Official:
And if you use or tried to use a deadly/dangerous weapon/instrument on that person, you’ll be charged with:
California Penal Code section 217.1(a) (Assault on a Public Official)
To convict you of this particular crime, the Assistant/Deputy District Attorney prosecuting you must prove to the jury (or, in a “court” trial, to the presiding judge) each of the following elements beyond a reasonable doubt:
See also Simple Assault (Penal Code section 240).
The following are all related criminal statutes…
This statute criminalizes any attack or attempted attack against any “member” of the U.S. Army, Marine Corps, Navy, or Air Force (and presumably the Coast Guard as well), but the motive for the attack must be directly related to his/her military service. Penal Code section 241.8(a).
This specific statute specifies the criminalization of an attack/attempted attack on someone who works as a police officer for a public school district as defined in California Education Code section 38000.
See also Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 903 (“Assault on School District Peace Officer — Pen. Code §§ 240, 241.4”).
This statute is fairly self-explanatory. Again, you can be convicted of this crime even if the assault occurred after-hours, on the weekends, during a holiday, or even away from the school grounds.
In addition, “school employee” is defined in Penal Code section 245.5(d).
However, if you assaulted the purported victim was part of a labor dispute (e.g., you were trying to cross a picket line), then you would be charged with a different crime.
See also CALCRIM no. 904 (“Assault on School Employee — Pen. Code §§ 240, 241.6”).
This, of course, involves you assaulting or trying to assault a juror in your own case – whether it involves civil litigation or a criminal matter – either during or after the end of your trial. This also protects alternate jurors. Interestingly, however, if a non-party (e.g., your husband or wife) attacks a juror/former juror, he/she won’t be charged hereunder (though he/she would obviously be charged with another assault-related offense).
See also CALCRIM no. 905 (“Assault on Juror — Pen. Code §§ 240, 241.7”).
Although this particular offense doesn’t involve a public official or officer, it is somewhat related to that crime. Specifically, this assault must take place on the campus of any type of school, public or private, including a junior college, but not including any four-year university or college. Penal Code section 241.2(b).
The park, however, must be a public space which is maintained/operated by a municipality. It, therefore, cannot include any privately-owned space or commercial center. Pen. Code section 241.2(c).
See also CALCRIM no. 906 (“Assault Committed on School or Park Property — Pen. Code §§ 240, 241.2”).
As with the previous crime, this is one not directed at a public officer/official, but occurs on a public vehicle. Specifically, the victim must have been assaulted on a motorized vehicle, such as a bus or subway, that is typically owned/operated by a municipality. Penal Code section 241.3(a).
However, the vehicle can also be owned/operated by a private company that provides public transportation services, such as a taxi company, cable car operator, or school bus. Pen. Code section 241.3(b).
The assault can also occur anywhere on the grounds where the vehicle is stored or maintained, such as a bus or train station, or even its parking lot, so long as it’s publicly accessible. Pen. Code § 241.3(c).
See also CALCRIM no. 907 (“Assault Committed on Public Transportation Provider’s Property or Vehicle — Pen. Code §§ 240, 241.3”).
California Penal Code section 217.1(a) (Assault on a Public Official)
As stated above, if you’re convicted of a misdemeanor hereunder, and the judge requires you to go to jail, at most you’ll get 365 days therein.
Even if you’re only convicted of a misdemeanor, you’ll still lose your gun rights for a decade.
A felony conviction, however, can result in a prison stretch of 16, 24, or 36 months (the low, mid, and high terms), pursuant to California Penal Code section 1170(h)(1) (“Felony Prison Term Not Specified”).
And by minimum, you will not be eligible for parole until you have served at least 15 years of that sentence. This differs from a conviction for Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187, which does allow for the possibility of early release.
However, if you’re convicted of First-Degree Murder (Penal Code section 187(a), California Penal Code section 188, California Penal Code section 189(a) & California Penal Code section 190, then you’ll automatically get 25 years to life – though, again, with the possibility of early parole.
California Penal Code section 241.8 (Assault on Military Personnel):
For some inexplicable reason, this charge is always prosecuted as a misdemeanor with, again, a maximum potential jail sentence of twelve months. Penal Code section 241.8(a).
See CALCRIM no. 902 (“Assault on Military Personnel — Pen. Code §§ 240, 241.8”).
California Penal Code section 241.4 (Assault on School District Peace Officer):
As with the general offense of Assault on a Public Official, the sentences range from probation only for either misdemeanor or felony convictions, or a maximum of one year in jail for misdemeanors or three years in prison for felonies. Penal Code § 1170(h).
California Penal Code section 241.6 (Assault on School Employee):
Since this is always charged as a misdemeanor, at most you’ll get 1 year in the county lock-up.
California Penal Code section 241.7 (Assault on Juror):
As a “Wobbler” (California Penal Code section 17(b)), you can be convicted of either a misdemeanor or a felony. This comes with a potential year-long county-jail term, or a prison term for sixteen, twenty-four, or thirty-six months.
California Penal Code section 241.2 (Assault Committed on School or Park Property):
Since this is only a misdemeanor offense, the worst thing you can get is one year in jail. Penal Code section 241.2(a)(1).
If you’re a minor, or were a minor at the time you committed the offense, a conviction hereunder you might also be required to undergo therapy (assuming you or your parents can afford it). Pen. Code section 241.2(a)(2).
California Penal Code section 241.3 (Assault Committed on Public Transportation Provider’s Property or Vehicle):
This, too, is always charged as a misdemeanor which, therefore, only entails a maximum 12- month jail term. Penal Code section 241.3(a).
These are solid defenses against the above-described criminal charges:
You did assault the public official, but you didn’t know, nor should you have reasonably known, that the accuser was a public official at the time;
You did know he/she/them was a public official at the time, but you didn’t assault them to interfere with or in retaliation for them performing their official duties (e.g., you did so for personal reasons);
You only assaulted the public official because you were lawfully defending yourself or another person (i.e., you reasonably and actually believed that the accuser was about to inflict serious injury or even death upon you or the other person);
You engaged in mutual combat with the public official.
In mid-June 2021, an unidentified Berkeley resident (apparently a gas station attendant), age fifty-four, allegedly threw a water bottle at Governor Gavin Newsom while he was visiting some local businesses in Oakland on a promotional tour.
At the time, Governor Newsom was being guarded by a group of California Highway Patrol officers. Fortunately, the man missed and therefore the governor was uninjured in the alleged attack. Nor was he particularly perturbed by the incident, joking, “I guess different people have different ways of saying hi” (or something like that).
The officers immediately arrested the man (again, for some inexplicable reason, he was not identified in any of the media reports). He was charged with the following offenses:
The alleged assailant was reportedly an unhoused person with severe mental health problems. He is apparently still awaiting trial, but if convicted of both charges, and assuming the sentences are ordered by the judge to run concurrently, he could be looking at as much as four years behind bars.
However, realistically, because Gov. Newsome was uninjured, and because of the man’s mental health issues, he will probably receive Mental Health Diversion (California Penal Code section 1001.36) instead.
Client “Ryan X.” was Prosecuted for Allegedly Running Over a Man on a Bike; Charge: Assault with a Deadly Weapon (ADW); Potential Maximum Sentence: Four Years; Result: Misdemeanor Plea with No Time in Jail
People v. Ryan X. (Compton Superior Ct. – Oct. 2020):
Ryan X. was facing as much as four years in state prison after being arrested, charged, and prosecuted for (felony) Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1)(.
His case stemmed from an alleged “road rage” incident. Specifically, Ryan, while operating a motor vehicle, allegedly almost knocked over a man on a bike in Los Angeles. The man was furious by this unintentional side-swipe so he banged an open palm on Ryan’s hood when they were both stopped at a red light.
This, in turn, allegedly pissed off Ryan, who then did actually side-swipe and knock down the accuser. As luck would have it, however, the accuser was not seriously injured. But he claimed to LAPD that Ryan had tried to kill him with his vehicle. (There was insufficient evidence, however, to charge Ryan with Attempted Murder (California Penal Code section 664 & California Penal Code section 187(a)).
Unfortunately, however – but certainly not surprisingly – because of the deadly-weapon assault charge, the prosecutor also wanted to try Ryan with a First Strike (California Penal Code section 667(a)&(b); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”).
This meant that even with no prior criminal felony conviction, Ryan would nevertheless be required to serve a minimum of eighty percent (80%) of his prison sentence if convicted of the ADW charge – even if he behaved himself on the inside. And if he was ever convicted of another Violent-Felony Strike or Serious-Felony Strike, whatever the underlying prison sentence given by the judge would automatically be doubled.
Ryan retained LADALF’s #1 attorney Ninaz Saffari. After extensive negotiations with the District Attorney’s Office, she was able to achieve an almost unimaginable result. Specifically, the Deputy D.A. in charge of the prosecution reduced the ADW charge to misdemeanor Simple Battery (California Penal Code section 242). However, even that conviction could have cost him a year of his life behind bars.
Result: Ms. Saffari ultimately obtained for Ryan a zero-jail plea bargain with only summary probation, volunteer work, and full dismissal of the charge/conviction once probation was successfully finished. Ryan also lucked out because with the coronavirus court lockdowns, he ultimately didn’t even have to complete the volunteer work to successfully complete probation.