Criminal assault and battery may seem like minor offenses, but a conviction could complicate your life unnecessarily. These are among offenses in California that are aggressively prosecuted. In many cases, the offenses may carry sentence enhancements, especially if the victim is of a special class of people, for instance, a child, a peace officer, or an emergency officer.

However, with the help of a skilled criminal defense attorney, you can avoid a conviction of Assault or Battery through well-established legal representation. In this article, we focus on all you have to know about assault and battery offenses, and how Orange County Criminal Defense Attorney Law Firm can help you in fighting the charges.

The Definition of Criminal Assault and Battery

Assault and battery fall in the wider category of violent crimes. PC 240 defines Assault as threatening or attempting to use violence or force to injure another person while a battery is defined under California PC 242 as any intentional and unlawful application of violence or force on another person. 

Several people think that it’s only battery when there is evidence of a severe injury or beating. This is not the case. You may still be convicted of a battery offense even if you did not injure or harm the victim in any way.  All the jury looks at is if you touched the victim in a harmful manner.

Although, if a battery did cause a severe injury, you might instead be prosecuted for a distinct, related offense of battery causing serious bodily injury under PC 243(d).  Assault and battery can also be referred to as Simple Assault and Simple Battery, respectively.

Assault and Battery Are Not The Same Offenses

Many people tend to confuse assault and battery as the same offenses, and some even use it interchangeably. However, the two offenses are not the same. Assault is a mere attempt or threat to carry out an act of harming a person. On the other hand, a battery involves the real act of harming a person. For you to be charged with battery, you must have made physical contact, regardless of how slight the contact is, with the victim. But for Assault, you don’t need to have made any contact or caused any injury.

An example of Assault is threatening or attempting to punch a person. Going ahead to punch the person will be a battery offense. These two offenses are charged separately, and each has its punishments.  Assault is a lesser crime to Battery, but you can be prosecuted for both offenses if you issued a threat to harm the victim and then fulfilled the threat.

Note that physical contact can be indirectly using an object or directly in case you touched the victim.

Elements of Assault

Elements of Assault are factors the prosecuting attorney must prove for a person to be convicted of Assault. They include:

You acted in a way that, naturally, would possibly lead to the direct use of force on another person

Using force means you attempted or threatened to touch the victim in an offensive or harmful manner. Even a slight touch would count if you did it in an offensive or rude manner. Additionally, it is counted as Assault even if the attempted touching didn’t or couldn’t have caused any injury. Also, it is not a must that the attempted touching be direct; it may be indirectly by having an object trying to come into contact with the victim.

Keep in mind that you do not need to have been successful in using force on the victim for you to be convicted. All a prosecutor needs to prove is that you did an act that would possibly have led to force being used.

You acted willfully

A willful act is an act done on purpose or willingly. It is not necessary for the prosecutor to prove that you had the intention of breaking the law, hurting the victim, or gaining any advantage. All that counts is that you did the act on purpose.

For example, John and Tina are friends who are used to joking and teasing each other. One day, without her knowledge, John pokes Tina on the back with a stick in an attempt to tickle her. Tina doesn’t take John’s action kindly. She feels offended and decides she’s going to press Assault charges against John. John may be convicted of PC 240 because even though he didn’t intend to assault Tina, he acted on purpose.

When you did the act, you knew that it would make a normal person be convinced that the act would possibly lead to the direct use of force on the victim

As we mentioned earlier, the prosecuting attorney does not need to show that you intended to apply force on the victim for Assault conviction to occur. All he/she needs to prove is that given the circumstances, you were aware that there were high chances your actions could result in the application of force.

When you did that act, you had the physical ability to inflict force or violence on the victim

The prosecuting attorney must show that you had the physical ability to apply violence or force on the victim. If you didn’t have the ability, you wouldn’t be convicted of Assault.

Penalties for Assault

In California, Assault is a misdemeanor offense. Its possible penalties include:

  • Summary probation
  • A maximum of six months of a county jail sentence
  • A maximum fine of $1,000

Assault on Emergency Personnel or a Police Officer

The consequences for Assault are more severe if the victim is of a specific professional category. To be specific, you would face enhanced penalties if you assaulted a person who is in the line of duty as a:

  • Firefighter
  • Peace officer
  • Lifeguard
  • Traffic officer
  • Process server
  • A member of the search & rescue team
  • Animal control officer
  • A nurse or doctor administering emergency medical treatment
  • Code enforcement officer
  • Paramedic

If the victim you assaulted falls in any of these professions, and you were aware or reasonably should have been aware that they did, the maximum jail sentence will increase to one year, while the maximum fine will increase to $2,000.

Additionally, the fine will increase to $2,000 in case the assaulted victim is a parking control officer who was in the line of his or her duty. This is because, for apparent reasons, people in this profession are a common possible assault target.

Elements of Battery

Battery elements are what a prosecuting attorney must prove in court for a conviction to happen. If he/she can’t prove these factors beyond a reasonable doubt, then you cannot be convicted of battery. The elements include:

You touched another person

The definition of California Battery requires that a person makes physical or bodily contact with someone else. It is not a must that they cause an injury or harm to that person. Even the slightest physical contact qualifies as Battery.

Also, it counts as a battery offense even if the physical contact happened indirectly by using an object to make physical contact with the victim or through the clothing of the victim. For instance, a drunk Tim sneaks unto his friend Jerry and writes abusive terms on his shirt using a fountain pen. Tim may be charged with a battery because he touched Jerry offensively even though the touching was through Jerry’s clothes using a pen.


For you to be convicted of battery in California, you need to have willfully touched the victim. Willfully means you did the act on purpose or willingly. It doesn’t necessarily mean you had the intention of breaking the law, hurting the victim, or gaining any advantage. In simple terms, you do not need to have had the intention of committing a battery offense for you to be convicted, but you need to have had the intention of performing the act that resulted in the battery.

In an offensive or harmful manner

Physical contact only qualifies to be a battery offense if it’s done in an offensive or harmful manner. For instance, physical contact that is rude, violent, forceful, disrespectful, or angry.

Penalties for Battery

PC 242 Battery is a misdemeanor offense. Its penalties include:

  • Summary probation
  • A maximum of six months of a county jail sentence
  • Up to $2,000 in fines

Legal Defenses to Assault and Battery Charges

No one wants to serve time in jail or pay fines. Additionally, no one wants an assault or battery conviction on their criminal record. If convicted of either of these two offenses, people may think that you have a violent character even if the conviction has nothing to do with being violent.  However, if charged, an experienced attorney who is well-conversant with assault and battery laws can help you fight the charges. The attorney will know how to argue different defenses to beat the charges.  The defenses your attorney can use include:

Self-defense or defense of another person

Self-defense or defense of another person is only applicable to assault & battery charges if your attorney can substantiate the following factors:

  • You had reason to believe you or another person was in immediate danger of being touched offensively or sustaining physical injury.
  • You had reason to believe that immediately using force or violence was necessary as you had to defend yourself or the other person against the danger.
  • You used the necessary amount of force, and not more, to defend yourself or another person against the danger.

Keep in mind that words alone, regardless of how offensive they might be, cannot justify an assault or a battery. Self-defense or defense of another person is only applicable in case you had reason to believe that you or another person was in immediate danger of bodily injury or illegal touching. Thus, slapping a person who talked offensive words against you is not acting in self-defense.

Lack of physical ability to use violence or force

The ability to use physical force on the victim is one of the elements of Assault. If you didn’t have that ability, you wouldn’t be convicted of Assault. 

For instance, Mike and Cliff get into a heated argument and are about to fight one another. However, before they can fight, their friends intervene to separate them by pulling them to opposite sides. From where he is, Cliff throws a punch in Mike’s direction. Cliff won’t be convicted of Assault since Mike is far away that there’s no way the punch could have landed on him.

The act was not willful

If you did not intentionally attempt to or use violence against another person, then you are neither guilty of assault or battery. It could be that your act was by accident or the outcome of a mere misunderstanding. Or, it could be that the victim misinterpreted your action. If that is what happened, your attorney can ensure that the prosecuting attorney and jury know all the facts.

For instance, if you accidentally pushed a person in a large crowd, or if you inadvertently hit someone with an object that you were carrying, it does not qualify to be an assault or battery offense since you had no intention of doing the act.

False accusations

Since it is not mandatory for the assault or battery victims to prove that he/she suffered an injury, it’s simple for a person to accuse another falsely of either of these crimes out of jealousy, anger or a need to revenge.

An expert defense attorney is well-conversant with situations like these and will know how to collect proof and cross-examine witnesses to ensure the correct facts are unveiled.

Parental right of disciplining their child

In California, parents are sometimes charged with battery alongside PC 273d child abuse. Battery cases that involve parents and their children are often a legal attempt to bring their children in line. Just like charges of PC 273d child abuse, one could defend a battery charge of this kind by proving that the alleged battery act was within their child disciplinary rights.

Note that in California, parents are permitted to apply physical force when disciplining their children. However, the force they apply has to be reasonable, and it should not be excessive given the situation.

Mutual combat

Your attorney could argue the mutual combat defense if you and the victim were involved in a physical fight. If both of you were fighting, it’s likely that you will not be convicted. Your lawyer could argue that you didn’t attack the victim. Rather, it was a fight between the two of you. This defense is valid, especially if the victim retaliated.

For instance, Terry and Maureen are in an argument. Terry loses control and slaps Maureen. Maureen retaliates by slapping back Terry, causing an injury. Terry files battery charges against Maureen. Maureen may not be convicted since it was a fight between the two of them.


Consent could be a valid defense to a battery charge in case someone takes part in activities where there’s a general acceptance of the possibility of a battery to take place. This mainly applies to those activities that are inherently dangerous or sports games.  For example, in a soccer game, the likelihood that a person will hit another player with a ball is quite high. In a case like this one, it does not constitute a battery offense since that is what is bound to happen throughout the game and the players gave their consent to it.

Though, if the defendant’s actions went beyond soccer rules, he/she will most likely be guilty of a battery. Let’s say, for example, during a soccer game, Eddy, a goalkeeper, is standing at the goal post waiting to block their opponents from scoring. Timmy, a player in his team, comes and hits him with a shoe since he was infuriated when their opponents scored and thought Eddy let that happen too easily. Timmy might go to jail for battery because Eddy did not give his consent, and his act was way out of soccer rules requirements.

The following are not viable defenses

Provocation. As we said earlier, words alone, regardless of how offensive they are do not warrant an assault or battery. Therefore, you cannot claim that the victim provoked you, and that’s why you assaulted or battered him/her. Provocative actions that are not an attempt or threat to cause physical injury do not justify a retaliation of assault or battery.

Voluntary intoxication. In California, if you commit an Assault or Battery offense while intoxicated with drugs or alcohol, you cannot claim the voluntary intoxication defense. The reason is that under the law, a person is aware or should be aware that drugs and alcohol impair mental functioning. Therefore, the law holds any person legally responsible when they commit offenses due to their voluntary drug and alcohol use.

Although, if your attorney can prove that you were involuntarily intoxicated, chances are you won’t be convicted of either of the offenses. This is because you didn’t choose to use intoxicating substances.

Related Offenses to Assault & Battery

Related offenses to assault and battery are crimes that can be charged instead of or alongside Simple Assault and Simple Battery. They include:

Aggravated Assault (Penal Code 245a(1).

Aggravated Assault is also known as Assault with a Deadly Weapon. In case you allegedly committed Assault with a Lethal Weapon or using other ways that are most likely to result in serious bodily injury, you may be prosecuted under PC 245a(1).

This offense can be charged as a misdemeanor or a felony. Misdemeanor penalties include up to one year of county jail sentence while felony penalties include up to four years of a jail sentence.

Assault on a Public Official (Penal Code 217.1a)

Penal Code 217.1a is an attempt to retaliate or block a public official from performing his or her duties.  Examples of public officials are public defenders, prosecuting attorneys, judges, executive and elected officers of federal, state, or local governments.

This offense can also be prosecuted as a misdemeanor or a felony. Misdemeanor punishments include one year of county jail sentence while a felony conviction carries up to three years of a jail sentence.

Assault with Caustic Chemicals (Penal Code 244)

PC 244 is a more severe type of Assault. Assaulting someone with caustic chemicals means you threw or placed any form of corrosive chemical on another person with the intention of injuring or disfiguring him or her. This offense is charged as a felony. Its penalties include up to four years in state prison.

Aggravated Battery (Penal Code 243d)

Aggravated Battery is sometimes referred to as Battery causing Serious Bodily Injury. You will be charged with this offense if you committed a battery and you inflicted a severe injury or harm on the complainant.

This is a wobbler offense; meaning it could be prosecuted as a felony or misdemeanor depending on the facts of your case. A misdemeanor conviction carries a maximum sentence of one year in jail. A felony, on the other hand, carries up to four years of a state prison sentence.

Domestic Battery (Penal Code 243e(1))

Domestic Battery is a form battery defined by which victim is battered. The offense can be committed against any of these people:

  • Your current or ex-spouse
  • Your current or ex-fiancé(e)
  • Your child’s mother or father
  • Your present or ex-cohabitant
  • Someone you had or have a dating relationship.

This is a misdemeanor offense that carries a maximum of a one-year jail sentence and a maximum fine of $2,000. Additionally, in case you are sentenced to probation for this offense, you have to enroll in a batterer's treatment program, which lasts one year at the minimum.

Sexual Battery (Penal Code 243.4)

Sexual Battery is a separate offense from an Aggravated Battery, Simple Battery, and Domestic Battery. The offense involves touching intimate parts of someone else to achieve sexual arousal, gratification. or abuse.

Based on the facts of your case, Sexual Battery may be a felony or a misdemeanor. For instance, a defendant may be charged with a felony in case the battered victim was institutionalized or was illegally restrained.  Misdemeanor offenses carry up to six months or a year of county jail time based on the facts surrounding the case. Felony charges carry up to four years sentence in state prison.

Additionally, if you are convicted of either a felony or misdemeanor Sexual Battery, you will be required to register as a sex offender.

Find an Orange County Criminal  Attorney Near Me

A conviction of Battery or Assault could leave a permanent criminal record that might have a serious impact on your life. Do not let this happen. If you are charged with any of these offenses, attorneys from Orange County Criminal Defense Attorney Law Firm may be able to help you fight these charges. Call us at 714-740-7171 and share the details of your case so we can help.