Assault and Battery

California treats assault and battery charges very seriously. If convicted, you may be subjected to a long prison sentence and hefty fines that may affect your life forever. At The Los Angeles Criminal Defense Attorney, we may be able to help you successfully fight the charges against you. We have criminal defense attorneys who are experienced in California criminal cases and understand how court processes work. We will prepare a strong defense for your assault and battery charges to get the best possible outcome.

Navigating through assault and battery charges can be confusing for anyone that has been arrested on these allegations. Thus, it is critical that you understand what constitutes both charges, the penalties you may face if convicted, and the defenses your attorney may use in your case.

How the Crime of Assault & Battery is Defined

Assault and battery are categorized in the broader category of violent crimes. Although often said together, these two are different crimes. They can also be referred to as simple assault and simple battery respectively.

Simple assault is an attempted use of violence or force to touch another person in an offensive or hurtful way without their permission (PC 240). For instance, trying to punch, kick, slap, spit, or kiss someone. Contrarily, simple battery is the unlawful use of violence or force on another person (PC 242). That is, slapping, punching, or kicking someone.

Whereas the aggressor has to come into physical contact (regardless of how slight) with the victim in a battery case, an assault crime is quite the opposite; there doesn’t have to be any bodily contact or an injury.

Assault is a lesser crime to a battery offense. However, you may be convicted of both crimes in case you threatened to hurt a person and then went ahead to hurt the person.

Contrary to what most people think, there doesn’t have to be a severe beating or injury for it to qualify as a battery. You may still be charged even if you didn’t inflict any pain or injury on the defendant. Additionally, physical contact may be indirectly by the use of an object or directly if the defendant touched the victim.

Assault with a Deadly Weapon

Assault with a Deadly Weapon is unsuccessful or successful attempt to harm another person using a lethal weapon while having the actual ability to do so. This crime is convicted under PC 245, and it is a serious offense to simple assault. Generally, if you threaten to use a gun or a knife to harm someone or inflict great bodily injury, you will be charged with assault with a deadly weapon.

Aggravated Battery (PC 243 (d))

An aggravated battery happens when you inflict bodily injury or serious bodily injury on a person during an act of battery. California law differentiates between bodily injury and serious bodily injury. A serious bodily injury is a significant physical injury, for example, a concussion or broken bone. The prosecutor has to determine what constitutes these two types of injuries depending on the facts surrounding the case for you to be convicted of either.

The Elements of Assault

For you to be convicted of an assault crime in California, the prosecutor must prove the following beyond any reasonable doubt;

Your actions would possibly have resulted in the use of violence or force against the victim. Using force means you attempted to touch the victim in an offensive or hurtful way. Even the slightest attempt to touch offensively would count.

Also, note that your application of violence or force against the victim need not be successful for one to be convicted. All the prosecutor need is to prove that your action would most likely have led to the use of violence or force.

You acted intentionally. This means that your actions were on purpose, and even though you didn’t have the intention of harming the victim, breaking the law or gaining any advantage, you may still be convicted.

You knew that any reasonable person would believe that your action would most likely lead to the use of violence or force against the victim. You may not have had the intention to use violence or force against the victim, but if you knew that given the situation, there was a high chance your action would result in the use of force, you would be convicted of assault.

When you committed the act, you had the physical ability to use force on the victim. For instance, if someone you are threatening to strike is within striking distance, it is deemed that you have the physical ability to strike them.

Elements of a Battery Offense

To be convicted of a battery offense, the prosecutor has to prove these elements;

You touched the victim - The prosecution only needs to prove that you made bodily contact with the victim. Even if you did not injure him/ her, you will still be convicted. Also, note that even the slightest physical contact is considered a battery offense.

Additionally, if the prosecutor can prove that you came into physical contact with the victim through his/ her clothing or indirectly using an object, you will be convicted. Also, courts have established that one can be convicted of battery if they touch something that is intimately linked with another person’s body offensively, but it’s not part of his/ her body. For instance, when you knock an object off a person’s hand using force would be a battery offense.

Willfully and unlawfully - You must have intentionally had physical contact with another person for you to be guilty. Just like assault, you may not have had the intention to violate the law, injure the victim, or benefit in any way, but the mere fact that you acted willfully may get you convicted. Simply put, you do not need to have had an intention to commit a battery offense for you to be convicted, but you need to have had an intention to do the act that resulted in a battery offense.

In an offensive or harmful manner - You will only be convicted of battery if the physical contact you demonstrated towards the victim was offensive or harmful. For instance, if the contact is disrespectful, violent, angry, or rude.

Penalties for Assault

Simple assault is a misdemeanor offense in California. Its penalties include a maximum fine of $1,000, a maximum of six months county jail time, and summary probation.

Assault with a deadly weapon is a wobbler offense. It is also punished differently depending on the weapon in question. The penalties are as follows:

  • If it’s a misdemeanor offense and the weapon in question is not a firearm, you may be subjected to one year of county jail time and up to $1,000 in fines.
  • If the weapon in question is a firearm and it’s a misdemeanor offense, you may face a mandatory minimum jail sentence of 6 months and a maximum of a one-year county jail sentence.
  • If the offense is a felony and the weapon is not a firearm, you may face up to 4 years in state prison with a maximum fine of $10,000.
  • An assault with a semiautomatic weapon is always convicted as a felony. Its punishment includes up to 9 years sentence in state prison. If you used a machine gun, your sentence could be extended to up to 12 years.

If you assaulted, with a deadly weapon, emergency personnel, or a peace officer who are on their jobs performing their duties, you will be charged with a felony offense with more severe penalties. Protected personnel include police officers, firefighters, lifeguards, emergency medical technicians, traffic officers, process servers, animal control officers, code enforcement officers, members of a search & rescue team or doctors and nurses providing emergency treatment.

Battery Penalties

Simple battery is a misdemeanor offense. Simple battery refers to a battery that doesn’t result in severe bodily injury and is not committed against a police officer or any other protected individual. Its punishment includes summary probation, a maximum of six months of county jail time, a maximum of $2,000 in fines, a 10-year firearm ban, and enrolment in anger management classes.

On the other hand, aggravated battery or battery causing injury/ great bodily injury is a wobbler offense. If charged as a misdemeanor, you may face a maximum of one year of county jail time. If it is a felony, you may face up to four years in state prison.

Legal Defenses to Assault & Battery

Being convicted of assault or battery would have people thinking that you’re violent. The truth is, your conviction may not have a connection of you being violent. Maybe it was a simple misunderstanding, or you are accused of the crime wrongfully. To fight battery or assault charges, your attorney may apply the following common legal defenses:

Self-defense or Defense of Another Party

This defense will apply to both assault and battery charges if the following facts are true:

  • You had reason to believe that you or another person was in looming danger of being touched illegally or sustaining bodily injury.
  • You had reason to believe that the application of force or violence was needed to defend yourself or another person against the danger you were facing.
  • You applied the exact force that you reasonably believed was needed to defend yourself or another person against the danger.

Note that retaliating against a person with assault or battery because they said offensive words to/against you or another person is not acting in self-defense or defense of another person, for example, punching someone for talking ill of you. It would only be self-defense if you believed you were in immediate danger of physical injury or unlawful touching and acted with the necessary force.

You Didn’t have the Physical Ability to Use Violence or Force Against the Victim

This defense best applies to assault charges. Among the elements that a prosecutor must prove for you to be convicted is the use of force or violence on the victim. If you didn’t have the ability, you are not guilty of the assault charges against you.

For instance, after having a couple of drinks, Jim and Charlie have an argument and start fighting. Their friends come to separate them, driving them to opposite sides. From where he is, Jim swings a fist in Charlie’s direction, but Charlie is too far away for the fist to hit him. In this case, Jim would not be guilty of assault because he didn’t have the physical ability to hit Charlie.

False Accusations

It is possible for a person to accuse another falsely of assault or battery since no proof is needed to substantiate that the victim sustained an actual physical injury. The false accusations can be out of jealousy, anger, or desire to take revenge.  A skilled criminal defense attorney is familiar with this situation and may be able to gather evidence that may help prove your innocence.

The Touching was Not Done Willfully

If you did not willfully touch or try to touch the victim by use of force or violence, then you are not guilty of battery or assault. It may be that your act was accidental or it was due to a misunderstanding. Alternatively, it may be that the victim misinterpreted your act altogether. If that is what happened, your attorney may work to ensure he/she uncovers the whole truth.


Consent is a defense to battery charges in cases where a person participates in activities where there are high chances of battery taking place like in sports or other dangerous activities. For instance, during a basketball game, the chances that you will hit other players with a ball are very high. In this case, it doesn’t qualify to be a battery because that is somehow what the sport entails and your fellow players consented to it.

However, if your actions went beyond the basketball rules, you will be convicted of battery.  For instance, while Jeanine is standing at her position waiting for her team member to pass the ball, Caro comes and hits her with the ball on the head because she was annoyed that Jeanine passed the ball to their opponents. Caro is guilty of battery since Jeanine didn’t consent to her actions.

Mutual Combat

If you and the victim were fighting each other physically, then you cannot be convicted of battery. Your attorney may argue that it was not an attack towards the victim, but a fight between the defendant and the victim. This defense may hold especially if the victim too threw punches. For instance, Mike and Cliff are arguing. Mike loses control and punches Cliff. On seeing this, Cliff retaliates by throwing a punch back on Mike’s face resulting in an injury. Mike accuses Cliff of battery and files a police report. Cliff will most likely be innocent because it was a fight between two people.

Parental/Guardian Right to Discipline their Child

Sometimes parents are accused of battery when they discipline their children. They are charged under PC 273(d) child abuse. In these cases, the supposed battery offense is often a legal attempt to bring their children into line. Just like charges of child abuse, you may also defend yourself against battery charges by demonstrating that you were only acting within your child disciplinary rights. In California, parents may use physical force while disciplining their children. However, the force has to be reasonable and not excessive, given the circumstances.

Not Valid Defenses

Voluntary intoxication- In California, if you commit assault or battery while voluntarily under the influence, you cannot use intoxication as a defense. This is because according to the law, a person should be aware that drugs or alcohol impair mental functioning. Thus, people who voluntarily drink or use drugs are legally responsible for the crimes they commit.

However, if your attorney can prove that you were involuntarily intoxicated, you should not be convicted of assault or battery since you did not opt to use the intoxicating substance.

Provocation- You can’t claim that you were responding to a provocation with an assault or battery, especially if the provocation was not an attempt or threat, or an actual act of inflicting bodily injury. As we mentioned before, mere words, irrespective of how provocative or offensive they may be, cannot be an excuse to assault or batter someone.

Pre-Trial Options and Plea Bargains

If you have been charged with assault or battery, your attorney can carry out an investigation on the case to find out whether you were wrongfully accused or if there are reasons that may prompt the case to be dismissed before it can go to trial.

If the charges aren’t dismissed, your attorney may succeed in negotiating on your behalf a plea deal with the prosecution or come up with a strong defense to present at trial. Often, a prosecutor’s deal is for the attorney to let the defendant plead guilty and in exchange, he/she gets a lesser sentence like probation, or to reduce/ change the crime to a less serious one if the defendant pleads guilty.

Related Offenses to Assault & Battery

Disturbing the Peace (PC 415)

In California, it’s against the law to publicly fight a person, make insensible noise with the purpose of disturbing others, and to publicly direct provocative words towards another person. This is considered a misdemeanor offense and its conviction may subject you to up to 90 days in jail.

If you are facing assault charges, but the proof against you is not solid enough, the prosecution may lower the charges so that you are convicted under this penal code. This would be a good outcome for your case since penalties for Penal Code 415 are less severe than assault punishments.

Assault with Caustic Chemicals (PC 244)

This form of assault is more serious compared to other assault cases. It refers to placing or throwing any type of caustic chemical on another person’s body with the intention of injuring the person. The law considers this a felony offense. Its penalties include up to four years in state prison and hefty fines.

Domestic Battery (PC 243 (e) (1))

This is a form of battery categorized by the type of victim. Domestic battery can be committed against either of these parties

  • An ex or current spouse
  • An ex or current fiancé(e)
  • An ex or current cohabitant
  • The mother or father to one’s child

A domestic battery offense is classified as a misdemeanor. Its penalties include a maximum fine of $2,000 and a possible maximum jail time of one year. Additionally, in case you are given probation, you will have to join a batterer's treatment program, which lasts a year at the minimum.

Sexual Battery (PC 243.4)

Sexual Battery is a different offense from a simple, aggravated, or domestic battery. When you touch intimate parts of someone else with the intention of gaining sexual arousal, gratification, or abuse, you will be committing sexual battery.

Based on the facts of the case, this offense can be charged as a felony or a misdemeanor. For instance, felony charges can be in cases where the battery was against an institutionalized victim or if the individual is restrained illegally.

Sexual battery as a misdemeanor carries a jail term of up to six months or a year. The sentencing depends on the facts surrounding the case. Felony charges carry up to four years of a state prison sentence.

Lastly, if you are charged with either a felony or misdemeanor offense of sexual battery, you will be required to register as a sex offender.

Find an Assault & Battery Defense Attorney Near Me

An assault or battery conviction may be part of your permanent criminal history, which may have serious consequences on your life. For instance, you may have a hard time when looking for employment or renting an apartment. If you have been charged with either of these crimes, call The Los Angeles Criminal Defense Attorney at 310-564-2605. We have experienced attorneys who will prepare a strong defense that may increase your chances of getting the charges dismissed or penalties reduced.

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