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Pat Carey prosecuted almost every crime there is in California during his 8+ year tenure with the Los Angeles County District Attorneys Office. He uses that insider experience to fight your case from the inside out.
While “assault and battery” is a commonly-heard phrase, assault and battery are separate crimes. As in other states, California assault and battery laws are found in criminal as well as civil law (where it is considered an “intentional tort“). The elements of both civil assault and civil battery are very similar to the elements of criminal assault and battery discussed in more detail below.
California’s assault and battery laws can be found in Chapter 9 of the California Penal Code.
The California Penal Code defines assault as an “unlawful attempt” to cause a “violent injury on the person of another” — assault is often described as an attempt to commit a battery. A prosecutor must show that the defendant intended to commit a battery and had the “present ability” to do so, but does not need to show that physical contact actually happened.
Battery describes force or violence used against another person. A prosecutor must show that the defendant willfully made contact with another person. The Penal Code establishes varying degrees of severity for a battery. While Section 242 of the Penal Code sets the basic elements of a battery, a prosecutor can also use Section 243(d) when the victim suffered a “serious bodily injury.” In addition, the Penal Code includes specific code sections regarding battery against specified persons such as peace officers, police officers, firefighters, emergency response technicians, school employees, and others. The Penal Code also establishes separate laws regarding battery in the context of domestic violence.
The type of criminal charge depends on the severity of the battery and the circumstances surrounding the crime. California state laws allow a prosecutor to pursue charges of aggravated assault or aggravated battery in the most serious cases. The prosecutor must show an “aggravating circumstance” to elevate the charges against the defendant. For example, use of a deadly weapon is often considered an aggravating circumstance that can elevate a charge to aggravated assault or aggravated battery. Another example of aggravated assault is assault with the intent to commit a felony such as murder or rape.
The penalties and sentencing for a defendant convicted of assault or battery depend on the severity of the crime, any aggravating circumstances, and the defendant’s past criminal history.
For a simple assault, the Penal Code sets a maximum fine of $1,000, a maximum sentence of imprisonment in county jail for six months, or both. The penalties can increase to $2,000 or one year of imprisonment, however, if the victim of the crime is one of the persons specified by the Penal Code, such as an on-duty peace officer, or if the crime happens in a specified location such as a school or public park.
For a simple battery, the Penal Code sets a maximum fine of $2,000, a maximum term of imprisonment for six months in county jail, or both. The term of imprisonment can increase to one year based on the circumstances of the crime; for example, the sentence can increase if the victim was one of the types of persons specified by the Penal Code or if the defendant engaged in domestic violence. For a battery resulting in serious bodily injury, California law permits felony sentencing according to Section 1170 of the Penal Code. Sentencing through Section 1170 can result in a term of imprisonment for two, three, four years, or for another term depending on the criteria under the section. In addition, prior felony convictions may lead to increased penalties for a new conviction.