California Assault and Battery Laws, Explained!

This article takes a close look at charges brought under California's assault and battery laws and their consequences.

The most commonly charged crimes of violence in California are assault under Penal Code 240 and battery under Penal Code 242. If you have been charged with any assault or battery, it is important you understand the law to defend your rights and protect your future. The risk of jail or prison and a permanent criminal record requires your full attention and efforts.

Other assault and battery charges apply if the victim is a family member, police officer or other certain specific person. In other cases, different assault and battery charges apply if the act happened at a specific place such as a school, park or hospital. Because there are many different laws regarding the types of injury, location or characteristic of the victim, the crime can be either a misdemeanor or a felony.

For every charge of assault or battery, there are always 2 sides to every story. Your side and the police report. Defending against a charge of assault or battery requires a strong investigation of the facts of the alleged victim, knowledge of the law and an understanding of the criminal justice system.

In addition, many alleged victims of assault and battery may file lawsuits in civil court and demand compensation. A conviction of assault or battery will likely result in a civil suit being filed against you for monetary demands and financial restitution.

Understandably, you will want to know more about the legal process and developing your defense against a charge of California assault or battery. Please call the Torrance and Pasadena Law Offices of Justin Lo at (310) 284-7385 to learn more about protecting your freedom and future.

Examples of Assault or Battery

Assault and Battery are closely related, but legally different. Generally, an assault is an attempt to touch someone while a battery occurs when someone is actually touched.

Examples of Assault

  • Someone attempts to punch someone else, but they swing and miss
  • Sometimes tries to scare someone by driving their car toward that person because they are arguing over a parking spot but does not hit the other person
  • Trying to throw or splash hot coffee or drink at someone but missing them
  • Shooting at someone with a gun but not hitting the intended person1

Examples of Battery

  • Throwing a tool at victim during an argument that causes them to fall off a ladder and suffer severe injury.2
  • Lightly poking someone with your finger during a heated argument is a battery under PC 242. No mark or pain or injury needs to be suffered. Any touching done without the permission of the other party is enough to support a conviction for battery.3
  • A battery is committed if a doctor performs surgery on a patient without the patient’s informed permission.4 In Perry v. Shaw, a medical doctor enlarged a woman’s breasts from 34B to 40DD without her consent.

Penalties for Assault, Battery & Commonly-Related Claims

The penalties for assault and battery depend on whether the prosecutor can prove you committed the crime beyond a reasonable doubt and the severity of the crime. If the prosecutor has trouble proving your case or your defense is strong, the prosecutor might offered a less serious charge or punishment to settle the matter. If your case is extremely weak, a dismissal of the case can be considered.

Simple Assault
Code SectionPenal Code, § 240
Violation TypeMisdemeanor
Custody TimeUp to 6 months in jail.
Battery
Code SectionPenal Code, § 242
Violation TypeMisdemeanor
Custody TimeUp to 6 months in jail.
Sexual Battery
Code SectionPenal Code, § 243.4
Violation TypeCan be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody TimeIf charged as a misdemeanor: up to one year in jail. If charged as a felony: two or four years in prison.
FineUp to $10,000 fine.
Additional ConsequencesLifetime sex offender registration with police departments and internet listing.
Misdemeanor Sexual Battery
Code SectionPenal Code, § 243(e)(1)
Violation TypeMisdemeanor
Custody TimeUp to 6 months in jail.
Additional ConsequencesLifetime sex offender registration with police departments and internet listing.
Aggravated Assault
Code SectionPenal Code, § 245(a)(1)
Violation TypeCan be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody TimeIf charged as a misdemeanor: up to one year in county jail. If charged as a felony: two or four years in prison.
FineUp to $10,000 fine.
Assault with a Firearm
Code SectionPenal Code, § 245(a)(2)
Violation TypeCan be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody TimeIf charged as a misdemeanor: up to one year in county jail. If charged as a felony: two or four years in prison.
FineUp to $10,000 fine.
Assault with a Semi-Automatic Weapon
Code SectionPenal Code, § 245(a)(2)
Violation TypeFelony
Custody TimeBetween three and nine years in prison.
Assault with Force Likely to Produce Great Bodily Injury
Code SectionPenal Code, § 245
Violation TypeCan be a felony or a misdemeanor depending on the facts of your case and prosecutor’s discretion.
Custody TimeIf charged as a misdemeanor: up to one year in county jail. If charged as a felony: two or four years in prison.
Battery against an Elder or Dependent Adult
Code SectionPenal Code, § 243.24
Violation TypeMisdemeanor
Custody TimeUp to one year county jail sentence.
FineUp to $2,000.

Consequences of a Conviction for Assault & Battery

Anyone convicted of assault or battery faces several potentially difficult obstacles in the future that include:

  • Immigration consequences from potential removal or deportation from the United States if you are not a citizen. Other people face the inability to renew or apply for certain immigration processes
  • Permanent criminal record that would prevent or hinder future employment
  • Loss or review of California professional license

Legal Requirements for Conviction of Assault or Battery

To build your defense against an assault or battery charge, you must understand each element of each charge. If any single element for either crime is not met, a conviction for assault and battery cannot occur.

For a charge of simple assault under PC 240, the prosecutor must find all of the following elements to find you guilty5

  • You performed a physical act that would directly and probably result in force against a person. No physical contact needs to be made between you and other person.
  • You did that act willfully. It does not matter that you did not want to harm the other person, only that you intended to touch them.
  • When you acted, you knew your act would directly and probably result in the application of force to someone.
  • When you acted, you had the present ability to apply force to that person. Usually, this means you have to be close enough to touch the other person. For example, if you were just shaking your fist in anger toward someone on the opposite side of a bar with many customers, you do not have the present ability to touch that other person and thus conviction for assault cannot occur.
  • You did not act in self-defense or defense of someone else6

In some cases, prosecutor’s overcharge defendants with serious crimes that are much higher in penalties than the actual facts of your case. It is up to you and your attorney to prevent prosecutor’s overreaching and develop the facts, perform the legal research and argue for the less serious crime and reduced punishment to minimize any punishments you face.

Defenses Against a Charge of Assault or Battery

Defending yourself against a charge of assault or battery depends on the facts of your case. Because everyone’s situation is different and different laws and facts apply in your case, it is important your defense is tailored and shaped by the facts and law in your matter.

The following defenses can apply to a charge of assault or battery. Your attorney will help you choose the strategy that is most effective.

  • You were simply defending yourself and the other person tried to attack you first. Self defense is a defense against assault and battery under California law. Self defense is generally most effective when you are able to show evidence you were being attacked or in reasonable imminent fear of being attacked.7
  • Threat of future harm is not sufficient for a conviction of assault. Insulting words or threat of harm does not support a conviction for assault.8
  • You did not intend to assault the other person. Mere reckless conduct is not enough for a conviction of assault.9
  • You did not have the ability to inflict force on the other person. For instance, if someone draws their knife, steps back and is too far from the other person to harm them, there can be no conviction for assault with a deadly weapon because there was no realistic possibility of harming the other person.10
  • You were wrongly identified and are wrongly accused. This happens most often in bar or street fights where multiple people are fighting and you are wrongfully accused of participating in the fight. Many people involved in fights are often only trying to break up the fight or protect their friends.
  • The “victim” is lying and reported you to the police for assault or battery because they want to hurt you for some other reason.

Example

In People v. Burres, the defendant drove his car toward a police officer in order to scare him. The Burres court reversed Mr. Burres’ conviction for assault likely to produce bodily injury upon a police officer under Penal Code 245(b) because a conviction for assault cannot be found only from a defendant’s intent to frighten another person.11

Civil Compromise as a Solution to Assault & Battery Charges

Some cases involving assault, battery and other crimes can be discharged by the court if a civil compromise with the victim can be reached.12 Most civil compromises involve compensating the victim financially for their injuries and other related costs. After a civil compromise is reached, you cannot be prosecuted against for the same offense.13

Civil compromises cannot be used in cases involving police officers, domestic violence, elder abuse or child neglect. More importantly, because a prosecutor may object to any civil compromise, an earlier discussion with the prosecutor is essential to gain their support for a compromise of the criminal case.

Courts usually consider the following factors before deciding to dismiss a case after a civil compromise:14

  • Whether the criminal violation is coextensive with a civil injury
  • Whether the injury to the public is fully vindicated by a private settlement by the defendant and victim
  • Whether the victim’s agreement is voluntary.

A civil compromise to a charge of assault or battery is an excellent option to resolve a case without putting you at risk of jail or a permanent criminal record. It is up to your attorney to discuss the compromise with the victim and to obtain the support of the judge and prosecutor to be successful in dismissing your case.

Final Thoughts

In assault and battery cases, the facts and circumstances in your case greatly determine what can happen to you. Because there are so many sides to the story, the following considerations must be made in your case:

  • Whether you are being charged with a law that is too serious for your facts and would result in greater potential jail or prison time.
  • Determine if you have a factual defense against assault or battery. Self-defense, weak witness credibility of the alleged victim are often strong defenses. A strong investigation is necessary to show the prosecutor their case is weak.
  • Explore whether you have a legal defense against assault or battery. There are many California cases which explain the laws of assault and battery. It is up to your attorney to research and determine if any California cases may help you.
  • Show the prosecutor that serious punishment and criminal conviction is not appropriate and a less serious alternative, such as counselling is better for you and the victim.

Feel free to call the Torrance and Pasadena offices of Los Angeles criminal defense attorney Justin Lo at (310) 284-7385 to speak about your case and determine the best course of action to get your future back on the right back.


  1. Pen. Code, § 245, subd. (a)(2).

    Footnote 1
  2. People v. Duchon (1958) 165 Cal.App.2d 690, 693.

    Footnote 2
  3. People v. Flummerfelt (1957) 153 Cal.App.2d 104.

    Footnote 3
  4. See Perry v. Shaw (2001) 88 Cal.App.4th 658. Although not a criminal case, Perry v. Shaw is an excellent illustration of battery. There, the surgeon in this case has enlarged the patient’s breasts after receiving consent while the patient, Ms. Perry was medicated and lying on the operating room table. Ms. Perry’s breasts were enlarged from 34B to a 40DD.

    Footnote 4
  5. CALCRIM No. 915.

    Footnote 5
  6. Self-defense is a very factually sensitive defense. An argument for self-defense must take into account all the facts of your situation and the thoroughness of the police investigation.

    Footnote 6
  7. People v. Rush (1960) 180 Cal.App.2d 885, 990.

    Footnote 7
  8. People v. Dodel (1888) 77 Cal. 293, 294.

    Footnote 8
  9. People v. Rocha (1971) 3 Cal.3d 893, 898.

    Footnote 9
  10. People v. Dodel (1888) 77 Cal. 293, 294.

    Footnote 10
  11. People v. Marceaux (1970) 3 Cal.App.3d 613, 618. Burres has been overruled People v. Colantuono (1994) 7 Cal.4th 206.

    Footnote 11
  12. Pen. Code, §§ 1377–1379.

    Footnote 12
  13. Pen. Code, § 1378.

    Footnote 13
  14. People v. Moulton (1982) 131 Cal.App.3d.Supp 10.

    Footnote 14
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