Assault and Battery

In common parlance, the words “assault and battery” are used interchangeably, however, they are two very distinct crimes under the Penal Code. Simple assault can be accomplished without ever touching the victim, and as such it can be thought of as an attempted battery, whereas battery requires the physical touching of the victim, and in that way it is a completed assault. Because of what is known as the merger doctrine, you cannot be convicted and punished for both assault and battery, rather the assault “merges” with the battery.

Simple assault is defined by California Penal Code section 240 as the willful commission of an act that by its nature would probably and directly result in the application of force on another; at the time of the act the defendant had the ability to apply force to that person; and when the defendant acted he was aware of facts that would lead a reasonable person to conclude that his act would probably and directly result in the application of force on another. Simple battery is defined by California Penal Code section 242 as the willful touching of another in a harmful or offensive manner.

Both simple assault and simple battery are misdemeanors punishable by up to 6 months in county jail and a fine of $1000 and $2000 respectively.

There are many times however, where it is not so simple, and the prosecutor decides to charge assault under Penal Code section 245(a)(4): assault with a deadly weapon (even where no weapon is used, prosecutors often charge assault under this code section where the assault is done “with force likely to produce great bodily injury”). A prosecutor might also charge a battery under Penal Code section 243(d), aggravated battery where “great bodily injury” in fact occurs (great bodily injury can be something as significant as organ failure or disfigurement, or as minor as a brief loss of consciousness or a concussion). Assault with a deadly weapon does not merge with aggravated or simple battery.

Both assault with a deadly weapon and aggravated battery are wobblers, meaning that they may be charged as either a misdemeanor or a felony depending on the circumstances. Where charged as a misdemeanor, assault with a deadly weapon is punishable by up to 1 year in county jail, court-ordered anger management classes, and a fine of up to $10,000. Aggravated battery carries a potential 1 year jail sentence and a fine of $1,000.

Where charged and convicted as a felony, assault with a deadly weapon and aggravated battery are punishable by up to 4 years in state prison and a fine of $10,000. Depending on whether a weapon was used, as is the case for assault, or whether the defendant personally inflicted the great bodily injury, as is the case for battery, these offenses are strikeable under the three strikes law which means that where the assault or battery conviction is a third or even a second strike, the sentence is dramatically increased and the ability of the defendant to earn custody credits and be paroled is severely restricted or eliminated. Where a first or second striker defendant is charged in the same proceeding for multiple felonies (even where those felonies are not strikes themselves) committed on separate occasions and arising from separate facts, then the sentence(s) for those felonies must be served consecutively. The above circumstances will also make the defendant ineligible for local incarceration under Penal Code section 1170(h), making it much more likely for a defendant to serve the entirety of his sentence in state prison.

Because Assault of any variety does not actually require physical touching, it is easy for people to be falsely accused. It might similarly be easy for an experienced criminal defense attorney to raise this reasonable doubt. The most common defense to a charge of battery is self-defense. To prove self-defense a defendant must prove that 1) He was responding to an imminent threat, 2) He reasonably believed he would be harmed, and 3) he used no more force than necessary to respond to that harm. Self-defense makes for a very powerful defense especially when coupled with the “reasonable doubt” standard, which says it is the burden of the prosecution to prove beyond a reasonable doubt that self-defense did not occur.

If you are arrested for any assault or battery charge, it is important that you contact a skilled defense attorney immediately. As a former prosecutors, the attorneys at Terrell Firm know what it takes to get the best possible result for your situation.

The information contained on this website represents opinion only and is not intended to, nor should be relied on as legal advice of any kind. Should you wish to consult with an attorney, contact an attorney at the Law Office of Jesse Terrell at (323) 638-4712.
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