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Assault and Battery

California Penal Code 242 P.C.; California Penal Code 243(d) P.C.

"Assault" and "battery" are actually two distinct criminal offenses, but they are typically charged together when the event in question results in physical injury to the alleged victim.

What are Assault and Battery Charges?

Under California Penal Code 240 P.C., "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Thus, assault does not require you to actually injure, or even touch, the alleged victim. Instead, assault can simply be the attempted battery of the alleged victim. This is known as "Simple Assault", which is charged as a misdemeanor.

Under California Penal Code 242 P.C., "A battery is any willful and unlawful use of force or violence upon the person of another." Battery requires the actual harmful or offensive contact with the alleged victim. This is known as "Simple Battery", which is charged as a misdemeanor.

Both of these charges are misdemeanors. However, you can be charged with a felony under California Penal Code 243(d) P.C. for Aggravated Assault if you allegedly caused the victim serious injury. Otherwise, because Aggravated Assault is a "wobbler" offense, the District Attorney's Office has the discretion to charge it as a misdemeanor, depending on the facts and your criminal record.

What are Examples of Assault and Battery crimes?

Examples of Assault and Battery situations include the following:

  • While at an L.A. Dodgers home game, a Boston Red Sox fan cursed at you, so you hurled a ball at his head. If you missed, you would be charged with Simple Assault. If you actually struck him but he was only moderately injured, you would be charged with Simple Battery. If you struck him and he was seriously injured, you would be charged with Aggravated Battery.
  • A man cut in front of you while you were in line at movie theatre so you tried to kick him in the groin area. If you missed, you would be charged with Simple Assault. If you actually struck him but he was only moderately injured, you would be charged with Simple Battery. If you struck him and he was seriously injured, you would be charged with Aggravated Battery.
  • While at a political rally, you spit in the face of a rival protester (Simple Battery).

What Does the Prosecutor Need to Prove for a Simple Assault Charge?

To prove that you are guilty of Assault and Battery under California Penal Code 240 P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 915):

  • You committed an act that would directly and probably result in the application of force to a person;
  • You performed that act willfully;
  • When you acted, you were aware of facts that would lead a reasonable person to realize that your act would directly and probably result in the application of force; and
  • When you acted, you had the present ability to apply this force.

What Does the Prosecutor Need to Prove for a Simple Battery Charge?

To prove that you are guilty of Simple Battery under California Penal Code 242 P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 960):

  • You willfully and unlawfully touched another person; and
  • The contact was done in a harmful or offensive manner.

What Does the Prosecutor Need to Prove for an Aggravated Battery Charge (Battery Causing Serious Bodily Injury)?

To prove that you are guilty of Aggravated Battery under California Penal Code 243(d) P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 925):

  • You willfully and unlawfully touched another person;
  • The contact was done in a harmful or offensive manner; and
  • The victim suffered serious bodily injury as a result of the force used.

What Happens If I am Convicted of an Assault and Battery Charge?

If you are convicted of Assault and Battery under California Penal Code 245(a)(1) P.C., you face the following punishment (excluding any sentencing enhancements):

  • Two, three, or four years in prison (if you are convicted of felony Aggravated Battery). Aggravated Battery can be charged as a strike offense under California's "Three Strikes Law", which could result in a sentencing enhancement and would require you to serve at least 85% of your sentence, even with good behavior); or
  • Six months in county jail (if you are convicted of Simple Assault or Simple Battery, which are both misdemeanors), or one year in county jail (if you are convicted of misdemeanor Aggravated Battery); and
  • A maximum fine of $1,000 (misdemeanor Simple Assault) or $2,000 (misdemeanor Simple Battery);
  • Probation of three or five years (felony or misdemeanor);
  • Permanent ban (felony) or 10-year ban (misdemeanor) from possessing or owning a firearm;
  • Imposition of a protective order to stay away from the victim;
  • Possible anger management counseling (felony or misdemeanor);
  • Possible community service (felony or misdemeanor);
  • Victim restitution (if applicable); and
  • Possible loss of employment and educational opportunities, or adverse immigration consequences (if applicable).

What are My Possible Defenses to Charges of Simple Assault, Simple Battery, and Aggravated Battery?

Assault and Battery cases can often be resolved during the investigation stage even before criminal charges are actually filed. Specifically, a highly experienced and skilled Los Angeles County Assault and Battery attorney like Ninaz Saffari might be able to convince the investigating detective to not refer the case to the District Attorney's Office for prosecution, or to convince the D.A.'s Office not to file charges if the case has already been referred. These are called Pre-Files, which Ms. Saffari has a great deal of experience in successfully negotiating. See her Case Results.

If you are charged with Simple Assault, Simple Battery or Aggravated Battery, Ms. Saffari will first conduct a thorough investigation, often with the help of her private investigator, to ascertain all relevant facts. Again, if possible, she will attempt to get the charges dismissed either before or shortly after they are filed. If she takes the case to trial, she will often use an expert witness, and will argue that the alleged harm never occurred, did not occur to the degree claimed, occurred but was the result of an accident or unintentional conduct, or that the District Attorney has otherwise failed to provide enough evidence to meet the high threshold to prove Assault and Battery.

The following are the possible defenses to Charges of Simple Assault, Simple Battery, and Aggravated Battery:

  • Self-defense of yourself or another person. The alleged victim threatened you with force, attempted to assault you, or did in fact attack you or another person, and you reasonably believed you or the other person were in danger. Under California law, you are entitled to use force against someone to prevent wrongful injury to yourself or another. However, the force must be only that which was reasonably necessary to prevent the injury.
  • Lack of willfulness. You did not act willfully; e.g., the assault or battery was the result of an accident, misfortune or ordinary (non-criminal) negligence.
  • Lack of ability to use force (Simple Assault). At the time of the incident, you did not actually have the capacity to inflict force upon or to injure another person.
  • Parental rights (Simple Battery on a child). If the alleged victim is your own child, you were acting within the legal parameters of your rights as a parent.
  • Lack of harmful or offensive contact (Simple Battery). You did not actually touch the alleged victim in an angry, disrespectful, humiliating, or rude manner.
  • Lack of serious injury (Aggravated Battery). You did not actually cause great bodily injury to the alleged victim.
  • False accusations. The alleged victim or supposed eyewitness may have ulterior motives for lying to the police. Some of the most common motives include child custody disputes and romantic strife with current or former lovers.
  • Misidentification by the accuser or witness. For example, your act was misunderstood or misinterpreted, or you were not the actual person who committed the alleged assault or battery. Eyewitness identification can be affected by many different factors, including bad lighting, witness stress, cross-racial identification, suggestions by the police, etc.
  • Constitutional defenses. These include lack of probable cause, police misconduct (coerced confession, planted evidence, falsified police report, etc.), Miranda violations (suppressing any statements you made to the police if your Miranda rights were violated), and suppression of evidence that was seized without reasonable suspicion, probable cause, or a valid warrant (in violation of the Fourth Amendment).
  • Insufficient evidence. The prosecutor failed to provide sufficient evidence to prove you are guilty beyond a reasonable doubt of one or more charges.
  • The accuser and/or witnesses are not credible. In other words, for any host of reasons, the jury simple does not believe what the accuser and/or witnesses are claiming about your criminal culpability.

What Kind of Assault and Battery Cases Has Ninaz Saffari Defended?

Since 2005, Ninaz Saffari has successfully represented hundreds of clients (adults and juveniles) against Assault and Battery charges, including both as felonies and misdemeanors.

If you or a loved one are currently being investigated or prosecuted for this crime, it is critical that you immediately hire a highly skilled, aggressive and experienced Los Angeles County Assault and Battery criminal defense attorney like Ninaz Saffari. Contact the Saffari Law Firm, P.C. now for a free telephone consultation. If Ms. Saffari believes she can help you, she will immediately schedule a free in-person meeting or, if you are in custody, she will visit you in jail (again, for free and with no obligation to hire her).

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