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Assault & Battery

Assault & Battery

The term “Assault” is often used in conjunction with the term “Battery” but they are actually separate and distinct offenses.  The simplest way to distinguish the two is that assault is the attempted battery.  Assault is codified in California Penal Code section 240, which states that “an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.  Simple assault is a misdemeanor and carries with it a maximum penalty of six months in county jail and a fine of up to $1000.  To prove an assault occurred, the prosecution must prove: 1) the defendant did an act that by its nature would probably result in the application of force to a person; 2) the defendant acted willfully; 3) when the defendant acted he or she was aware that the act would probably result in the application of force to someone; 4) when the defendant acted he had the present ability to apply force to a person; and 5) the defendant did not act in self-defense or in defense of another.

The discussion above outlines the essence of a simple assault.  Of course, there are many different variations that may aggravate the offense.  The most commonly seen variation is California Penal Code section 245, assault with a deadly weapon or by force likely to cause great bodily injury.  California Penal Code section 245 has many subsections.  Below, we will go over some of the ones most commonly seen.

California Penal Code section 245(a)(1) punishes assault with a deadly weapon other than a firearm.  This charge is what is commonly termed a “wobbler” offense.  A wobbler offense means that the offense can be either a misdemeanor or a felony, depending on the circumstances of the case.  As a misdemeanor, it carries with it a maximum penalty of one year in county jail and a fine of no more than $10,000.  As a felony, it is considered a strike offense and is punishable by imprisonment in the state prison of two, three, or four years, depending on the circumstances of the case.

California Penal Code section 245(a)(2) punishes assault with a firearm.  It is also a wobbler offense.  As a misdemeanor, it carries with it a maximum penalty of one year in county jail and a fine of up to $10,000.  Interestingly, the statute mandates that if convicted of the penal code as a misdemeanor, at a minimum, the defendant must be sentenced to at least 6 months in county jail.  As a felony, it is also considered a strike offense and is punishable by imprisonment in the state prison of two, three, or four years.

California Penal Code section 245(a)(4) punishes assault by means of force likely to cause great bodily injury.  Again, it is a wobbler offense.  As a misdemeanor, it carries with it a maximum penalty of one year in county jail and a fine of no more than $10,000.  As a felony, it is punishable by imprisonment in the state prison of two, three, or four years.

Moving on now to discuss battery.   Simple battery is codified in California in Penal Code section 242, which states that “a battery is any willful and unlawful use of force or violence upon the person of another.”  A simple battery is a misdemeanor and carries with it a maximum penalty of six months in county jail and a fine of up to $2000.  To prove a battery occurred, the prosecution must prove: 1) the defendant willfully and unlawfully touched the complaining witness; 2) the defendant did not act in self-defense or in defense of another.  It is important to note that nowhere in the penal code does the legislature mention that the touching has to result in injury.  In fact, quite the opposite, any sort of offensive touching is enough to constitute a violation of the penal statute.  For example, D gets into an argument with V and a shouting match ensues.  V turns to leave and D puts a hand on V’s shoulder to stop V from leaving.  The mere touching of V’s shoulder by D in this situation is enough to constitute a battery.  It should also be noted that the touching does not need to occur via a direct contact between the defendant and the complaining witness.  For example: D and V are at the local cafe drinking ice tea.  D and V get into a disagreement and D splashes V with ice tea.  Here, the ice tea splashing on V is considered an extension of D and therefore, would be enough to constitute a battery as well.  Similarly, grabbing someone’s t-shirt willfully and unlawfully would also be considered a touching.

The discussion above outlines the essence of simple battery.  There are – of course – different variations that aggravate the offense.  For example: battery on a police officer, battery on military personnel, battery on transportation personnel, battery on a school employee, battery on a juror, etc.

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