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ASSAULT AND BATTERY

Assault and Battery are violent crimes and can cover numerous charges. Being convicted of a violent crime can have serious consequences, including jail or prison time. A lawyer can help you understand the nature of the charges, potential consequences, and possible defenses.

Assault (Penal Code Section 240)

Assault is typically misunderstood in everyday conversation or on TV. Most people are under the impression that an assault is when someone is hit and injured. However, it is defined as putting someone in the reasonable apprehension of a battery, or in common wording, an attempted battery. Battery is discussed below. To prove assault the prosecutor must show:

 

  1. The accused committed an act, that by its nature, would probably result directly in an application of force on another person;

  2. The accused acted willfully (this one is important);

  3.  When the accused acted, they were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and

  4. When the accused acted, they had the present ability to apply force to that person

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Assault

Application of force is defined as a harmful or offensive touching. Therefore, an assault can occur if the perceived contact did not or would not have led to physical injury. The perceived contact does not need to be direct, it can be caused indirectly by causing an object to touch the other person. 

-PC240

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The maximum penalty for simple assault is six months in jail. However, if the assault is on an officer or emergency personnel engaged in their duties, or a deadly weapon was involved the maximum penalty could be up to one year in jail. As a note, if a deadly weapon is used, the prosecutor can raise this misdemeanor charge to a felony charge, in which case the maximum penalty is four years in jail.

 

Assault With a Deadly Weapon (ADW) (Penal Code Section 245(a)(1), Penal Code Section 245(a)(2))

If a deadly weapon or firearm was used in the commission of the assault the prosecutor will raise the charge to assault with a deadly weapon. Once again, the victim need not ever actually have been touched or injured. They need only be put in the reasonable apprehension of a battery. To prove assault with a deadly weapon the prosecutor must show:

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  1. The accused performed an act that, by its nature, would probably result in the direct application of force to someone else;

  2. the accused performed that act with either a lethal weapon or with force that was likely to produce “great bodily injury;”

  3. the accused performed the act willfully;

  4. when the accused acted, they were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and

  5. when the accused acted, they had the present ability to apply force with a lethal weapon or force likely to produce great bodily harm

​-PC245

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This charge is a "wobbler," meaning that depending on the weapon used and facts of the case this crime can be charged as either a misdemeanor or felony. If a firearm was used, it will always be charged as a felony. 

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The maximum penalties for assault with a deadly weapon are 1 year in jail if charged as a misdemeanor, if charged as a felony the maximum penalty is four years in jail. If a firearm was used, the maximum penalty is twelve years in prison.

Simple Battery (Penal Code Section 242)

Simple Battery is a willful act that leads to a harmful or offensive contact of another person. Just as with assault, the contact does not need to lead to injury. Simple push, or spitting on someone would constitute a harmful or offensive contact. To make this charge even worse the touching can be of an item close to or closely associated with the victim. For example, the touching may only occur to the clothing the victim was wearing. To prove a battery the prosecutor must show:

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  1. The accused willfully and unlawfully touched another person in a harmful or offensive manner; and

  2. The accused did not act in self-defense, in defense of someone else, or while reasonably disciplining a child.

-PC242

Battery

There is often confusion when people hear that someone is accused of assault and battery. This creates the prescription that this is one charge. However, it is two separate charges. The prosecutor can charge someone with the harmful or offensive contact (Battery) and if the victim perceived the contact before it happened, they would have been put in a reasonable apprehension of a battery (Assault) and therefore they can be charged with both crimes. 

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Simple battery is a misdemeanor that has a maximum penalty of six months in jail. However, it should be noted that if the battery was conducted on a police officer or emergency personnel in the course of their duties, depending on the level of battery, it can be raised to 1 year in jail or even a felony. 

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Aggravated Battery (Battery With Serious Injury)(Penal Code Section 243(d))

Depending on the level of injury caused by the harmful touching the prosecutor can decide to charge the accused with aggravated battery instead of just simple battery. The charge of aggravated battery is also a "wobbler," meaning that the charge can be filed as either a misdemeanor or a felony. To prove aggravated battery the prosecutor must show:

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  1. The accused willfully and unlawfully touched the alleged victim in a harmful or offensive manner;

  2. the alleged victim suffered serious bodily injury as a result of the force or touching; and

  3. the accused did not act in lawful self-defense or defense of others

-PC243

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It should be noted that aggravated battery requires a serious injury. Typically, soft tissue damage (ie bruising) is not serious enough for aggravated battery. Usually there must be some sort of scar, loss of consciousness, broken bone and so forth to justify the charge of aggravated battery. 

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The penalties for aggravated battery are 1 year in jail, if remaining as a misdemeanor, or 4 years in jail if elevated to a felony. 

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Domestic Battery (Penal Code Section 243(e)(1))

Domestic battery is a crime of domestic violence. Just as in simple battery, no injury needs to have occurred, the touching need only be harmful or offensive. The difference is that the victim was a cohabitant, other parent of your child or spouse, fiance, or dating partner. 

-PC243

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The maximum penalty for domestic battery is one year in jail.

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Sexual Battery (Penal Code Section 243.4)

Sexual battery is the touching of another person’s intimate parts without their consent and for the purpose of sexual gratification, arousal, or abuse. The charge is also a "wobbler," but is generally charged as a misdemeanor. Generally, the charge will be increased to a felony if the victim was restrained, unconscious, or medically incapacitated.

-PC243 

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The maximum penalty for misdemeanor sexual battery is six months in jail and ten years as a registered tier 1 sex offender. If the charge is filed as a felony the maximum penalty is four years in prison (they can ad up to five years if the victim was seriously injured) and life time registration as a tier 3 sex offender. ​​

Defenses

Due to the specific intent nature of assault and battery, there are a few defenses against this crime allegation. Below are some examples of defenses that can be raised.

  • Self-defense or Defense of Others

    • Self-dense is one of the best defenses to an assault or battery charge. To use the self-defense defense the accused must show that:

      • They reasonably believed that they (or another person) were in imminent danger of suffering bodily harm;​

      • they reasonably believed that the immediate use of force was necessary to defend against that danger, and

      • they used no more force than was reasonably necessary to defend against that danger.

  • No Deadly Weapon

    • If the accused can show that the item used was not deadly, whether in general in the particular circumstance, the change can be reduced to simple assault or battery.

  • Act Was Not Willful

    • Assault and battery charges are a specific intent crime. The accused needed to have the criminal intent associated with the crime. If, for example, the assault or battery was an accident, then there was no criminal intent. Medical episodes, such as seizures can lead to involuntary muscle movements, which could show the movement was unwillful. 

  • Involuntary Intoxication

    • If someone's drink was spiked or they were forced to get drunk or high, then might have an involuntary intoxication defense. Some people do become violent when under the influence of an intoxicant. If they did not purposefully get intoxicated, they should not be held accountable. 

  • Insanity

    • The insanity defense can work if the accused can show they mental disease or defect where they:

      • did not understand the nature of their criminal act or

      • could not distinguish between right and wrong.

    • This defense is most effective if the accused has a history of mental illness and copious medical records showing mental health problems.

  • Mistaken Identity

    • Police and victims are human and do make mistakes. Perhaps the location where the assault and battery occurred was dark, or maybe the victim was intoxicated.  There are many reasons why the accused may not be the actual person to have committed the crime. It is helpful if the accused has either a witness as to their location at the time of the crime or GPS data.

  • Acted Under Duress

    • The accused may have performed the crime under duress if any reasonable person in that situation would have committed the assault or battery because:

      • someone physically threatened them or

      • there was an emergency situation that called for it,

    • This is another situation where having video footage and eyewitness accounts will help.

  • Not Physically Capable Of Committing The Act

    • Assault crimes require a certain degree of strength and mobility. If the accused suffer from a medical condition such as severe Parkinson’s disease or any other neuro-muscular disorder, it will be hard to prove beyond a reasonable doubt that they could assault anyone​

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Getting a Defense Attorney

Getting convicted of an assault or battery crime has the potential of resulting in you losing your freedom. Do not go against a trained prosecutor alone. Contact The Pitman Law Firm. With years of experience working with the District Attorney's Office and practicing criminal defense, we can help you.  

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