Assault and Battery

California Penal Code 240 PC defines assault as an attempt to use violence or force against another person. Assault means that you have the intention to touch or use force against someone in a way that will cause them injury or harm.

When facing charges for assault, the prosecution has to prove that these elements exist:

• You did something that would have resulted in the use of force against someone. The application of force can include offensive or rude touching, no matter how slight it was. You can be charged with assault even if the victim does not get hurt or you do not actually touch the victim. Offensive touching includes the use of objects to touch the victim.
• You willfully did the action. The prosecution will prove willfulness by showing a deliberate or an act committed on purpose even without the intention of breaking the law or hurting the victim.
• You were reasonably aware that the act would directly lead to the use of force on another person. The prosecution uses the standard of knowledge of a reasonable result to determine whether the defendant is guilty of assault. For example, if you fire a gun at someone to scare him or her off, you could be guilty of assault since you willfully fired the gun.
• You had the ability to apply force to the victim at the time of committing the crime.

Penal Code 242 defines battery as willfully touching someone else in an offensive or harmful manner. You can be charged with battery even when you did not cause harm or injury to the victim. Let’s look closely into the elements of battery:

• Touching someone else; touching a person requires physical contact (even the slightest) with another person. Touching the person indirectly with an object or through their clothing qualifies as a battery. In other cases, you can be charged with battery for actions such as spitting on someone or offensively touching an object that is intimately connected to the other person’s body though it is not a body part.
• Willfully touching the person even without the intention to break the law, gain an advantage, or hurt the victim.
• Touching another person in a harmful or offensive manner, which may be violent, rude, angry, or disrespectful.

The difference between assault and battery is that assault is an action that is likely to cause harm, and does not necessarily involve physical contact while the battery is the actual use of physical force or violence on a person.

Assault is usually a misdemeanor in California. The penalties depend on the type and nature of the assault. In the absence of an aggravating factor (in which case it is a simple assault), the penalties include:

• Summary probation
• A maximum of six months in county jail
• A fine not exceeding $1000

Some of the circumstances that can lead to stricter penalties include assaulting a peace officer or emergency personnel.

If you assault a peace officer, firefighter, EMT or paramedic, a lifeguard, an animal control officer, a search and rescue member, the penalties are usually stiffer. When charged with assaulting a peace officer or emergency personnel, the penalties increase to a maximum of one year in county jail and a fine not exceeding $2000.

You can also be charged with aggravated assault if you had the intent to cause violent injury to the victim with disregard to the life of the victim. You can also be charged with assault with an aggravated weapon if a deadly or dangerous weapon is used. You can also be charged with aggravated assault if the assault was done during another crime such as rape, robbery, or a murder attempt.

Aggravated assault is a wobbler offense. As a misdemeanor, the penalties include:

• Up to one year in county jail
• Probation
• Fines of up to $10,000
• The requirement to pay victim restitution
• Mandatory community service or the requirement to attend an anger management class

As a felony, the penalties include higher fines and an added sentence. Aggravated assault (felony) also earns you a strike according to the Three Strikes Law.

Simple battery is a misdemeanor under California laws. You may get a simple battery charge if no one suffered serious injury or the victim was not a peace officer or emergency personnel. The penalties include:

• Summary probation
• A maximum of six months in county jail
• A maximum fine of $2000

Fighting assault and battery charges require the help of a qualified criminal defense lawyer. The lawyer will come up with defenses to prove that you do not meet all the elements of the crime, to be convicted for assault and battery. Some of the legal defenses include:

1. You Acted In Self-defense Or Defense of Another Person

You could not be guilty of assault or battery if you acted with the belief that you or another person was in danger. Your lawyer will prove that:

• You had a reasonable belief that you or another person were at risk of suffering bodily injury (physical)
• You believed the use of force was reasonable and necessary
• The force you applied was reasonable under the circumstances

You can also use self-defense as a defense if you were protecting your property. For example, if you hit a person who is trying to break into your car, then you are not likely to face assault or battery charges.

2. The Act Was Not Willful/Intentional

When accused of battery, you have to have acted willfully. You can refute by showing that your action was accidental.

You can prove that the act was an accident by showing the lack of intent, negligence, or unlawful conduct.

For assault cases, you can prove that you did not intend to assault the victim. In other cases, the victim may have misinterpreted your actions for assault.

3. The Act Was Necessary for the Performance of Your Duties

Law enforcement officials are likely to face assault and battery charges if they use force when performing duties such as arresting offenders. In such a case, you have to prove to the jury that the use of force was necessary for preventing injury to yourself and others, arresting an offender, or keeping an offender from fleeing. You also have to prove that the use of force was reasonable. Note that the use of excessive force is illegal.

4. You Did Not Have The Ability to Apply Force

In assault charges, the prosecution has to prove that you had the ability to inflict physical force or violence on the victim. Your lawyer can dispute this by showing that you did not have the physical ability to inflict the said violence.

5. You Had the Parental Right To Discipline A Child

If you are charged with battery on your child, then you can defend your actions as part of disciplining your child. Your lawyer will need to prove that while disciplining your child, you used reasonable force that was not excessive.

6. You Were Falsely Accused

It is easy to land in court for assault and battery charges based on the desire for vengeance or anger from the “victim.” In such cases, it is only fair that your lawyer defends you in the best possible way by proving that you did not assault or batter the “victim.”

7. You Had The Consent of The "Victim"

You could not be charged with assault or battery if the victim gave consent to you touching him or her. The defense of consent applies when you are facing charges for sexual assault/battery.

When facing charges for assault and battery, you could be charged with other crimes as well. In some cases, these related offenses can lead to an added sentence. Some of the offenses related to simple assault and battery include:

1. Assault With A Deadly Weapon PC 245(a)(1)

Assault with a deadly weapon involves the use of a weapon other than a firearm to assault another person. Some of the elements that the prosecution must prove include those of simple assault, in addition to proving that you had the deadly weapon on you. You can be convicted of the crime even when you did not, or could not have caused harm to the victim with the said weapon.

California laws describe a deadly weapon as an instrument or object that is capable, through its use, of causing death or great bodily injury. In most cases, the deadly weapon is an inanimate object and not part of one’s body. However, a body part could be considered a deadly weapon, given the skill of the person.

The penalties for assault with a deadly weapon depends upon the circumstances of the crime and your criminal history. Some of the circumstances in an assault with a deadly weapon charge include:

• The type of weapon used
• The nature of the injury (if the victim is injured)
• The status of the victim (peace officers and emergency personnel are protected persons, assaulting them results in additional penalties).

When charged as a misdemeanor, the penalties include:

• Summary probation
• A maximum of one year in county jail
• A fine not exceeding $1000

When charged as a felony, the penalties are:

• Formal probation
• 2, 3 or 4 years in state prison
• Fines of up to $10,000

Assaulting a peace officer or another person in a protected profession is a felony. When convicted, you can spend 2, 4 or 5 years in state prison. If you used a firearm, the sentence varies as follows:

• 4, 6, or 8 years in state prison for an ordinary firearm
• 5, 7, or 9 years in state prison for a semi-automatic
• 6, 9, or 12 years in state prison for an assault weapon, a BMG rifle, or a machine gun

Assault with a deadly weapon can be a strike under the Three Strikes Law if you assault a peace officer, cause serious bodily injury during the assault, or personally used a firearm when committing the offense.

2. Disturbing the Peace PC 415

Disturbing the peace is a misdemeanor crime, which includes actions such as:

• Fighting or direct provocation towards someone in public
• Making unreasonable noise to disturb others

The penalties for disturbing the peace include a maximum jail term of 90 days. An attorney can help in having your charges reduced to an infraction, which has lighter penalties.

3. Assault On A Public Official PC 217.1(a)

Public officials include prosecutors, executive officers of local, state and federal governments, public defenders, and judges. It is a crime in California to assault such an officer while in the performance of their duties or retaliation.

Assault on a public official is a wobbler. As a misdemeanor offense, the penalties include a maximum of one year in county jail or misdemeanor probation and a fine of up to $1000. When charged as a felony, the penalties include 16 months, two years, or three years in county jail and a fine not exceeding $10,000. You may also receive formal probation as an alternative to a jail sentence.

4. Assault with Caustic Chemicals PC 244

An assault with caustic chemicals is a serious offense under California laws. The law defines the crime as maliciously throwing or placing a caustic or flammable substance on a person with the intention to disfigure or injure the person.

Assault with a caustic chemical is a felony. The penalties include a fine of up to $10,000 and a state prison term of either 2, 3, or 4 years. Alternatively, you can be sentenced to formal probation instead of imprisonment.

5. Battery Causing Serious Bodily Injury PC 242(d)

Under California PC 242(d), you are guilty of aggravated battery when:

• You touch another person in a willful and offensive manner
• You cause serious bodily injury to the person by touching him or her

Aggravated battery is a wobbler offense in California. The penalties for a misdemeanor include:

• Up to one year in county jail
• A fine of up to $1000
• Misdemeanor probation

For a felony:

• Formal probation
• 2, 3, or 4 years in county jail
• A fine of up to $10,000

You also lose the right to own a firearm in California.

6. Battery on A Peace Officer PC 243(b) and PC 243(c)(2)

Battery on a peace officer or other protected person happens when you offensively touch him or her while he or she is engaged in performing his or her duties. For you to be convicted, the prosecution has to prove that you knew or it was reasonable that you should have known that the person was a peace officer or a protected person.

Battery on a peace officer is a misdemeanor punishable by a term of up to one year in county jail and a fine not exceeding $2000. However, if the peace officer suffers an injury that requires medical treatment, the charge becomes a wobbler.

When charged as a felony, you may get 16 months, two years, or three years in county jail and fines of up to $10,000.

7. Domestic Battery (Spousal Battery) PC 243(e)(1)

Domestic battery is the crime of willfully, unlawfully, and offensively touching:

• Your current or former spouse or cohabitant
• A Fiancé(e) or former fiancé(e)
• A person with whom you have or had a dating relationship
• The father or mother of your child

Domestic battery is a misdemeanor offense that is punishable by up to one year in county jail, a fine not exceeding $1000, or misdemeanor probation.

In most cases, the domestic battery includes probation conditions such as:

• Attending a batterer’s program for one year
• Paying $5,000 to a battered women’s shelter
• Paying victim restitution to cover any costs the victim incurred due to the battery

Subsequent offenders face a mandatory 48-hour jail term.

If you are an immigrant, a conviction for domestic battery could lead to your deportation. Therefore, hiring a lawyer as soon as there are charges against you can help protect your residential status.

8. Sexual Battery PC 243.4

Sexual battery is the crime of touching the intimate part of another person for sexual abuse, arousal, or gratification, in an offensive manner without the consent of the victim. At its most basic level, sexual battery is a misdemeanor.

Penalties for misdemeanor sexual battery include:

• A maximum of six months in county jail
• A fine of up to $2,000. If the victim was an employee, the fine increases to $3000
• Misdemeanor probation for up to five years

However, some aggravating factors may increase the severity of the penalties. Aggravating factors in sexual battery cases include:

• The victim is unlawfully detained by the person committing the battery or allows someone else to do it when the victim is in his or her custody
• The victim has a serious disability or medical incapacity and is institutionalized for treatment
• The defendant uses fraud to misrepresent the nature of the crime
• The victim is made to masturbate or touch the intimate parts of the perpetrator or another person while under the above circumstances

Sexual battery when any of the aggravating factors are present is a wobbler offense. The conviction depends on the circumstances of the case and your criminal history.

As a misdemeanor offense, you can face up to one year in county jail, summary probation, and pay a fine of either $2000 or up to $3000 if the victim is your employee.

For a felony, the penalties include:

• Formal probation
• 2, 3 or 4 years in state prison
• If the victim suffers great bodily injury, you may spend an additional three to five years in state prison
• Fines not exceeding $10,000
• Lifetime registration as a tier three sex offender

9. Elder Abuse PC 368

You can be convicted of elder abuse if you are found guilty of battering a person who is 65 years or older.

Elder abuse is a wobbler offense. When charged as a misdemeanor, the penalties include:

• Summary probation
• Up to one year in county jail
• Fines between $6000 and $10,000 for second and subsequent offenses
• Paying victim restitution and counseling

When charged as a felony, the penalties include:

• Formal probation
• 2 to 4 years in state prison
• An additional and consecutive state prison term of 3-7 years if the victim suffers great bodily injury or death
• Fines of up to $10,000
• Paying victim restitution and counseling

Felony elder abuse could lead to a potential strike under the Three Strikes Law, especially where the elder suffers great bodily harm or death. Thus, subsequent charges would increase depending on the strike.

When found guilty of battering an elder, the misdemeanor penalties include a term of up to six months in county jail and fines of up to $2000. When the elder suffers serious bodily harm, the offense is punishable as a wobbler with penalties including a jail term of up to one year in a county jail for a misdemeanor. When charged as a felony, the sentence increases to a state prison term of up to 4 years.

You will likely face both criminal and civil charges for assault and battery. To protect your rights and defend your position, you need a qualified assault and battery lawyer, who not only understands criminal defense but can represent you in court as well. Call the California Criminal Lawyer Group at 408-622-0204 for a free consultation.