Assault and battery are often talked about together, however assault and battery are two different violations with their own penal codes.
Assault, California Penal Code (PC) 240, involves causing fear or apprehension of imminent violence (whether attempted or threatened) and is typically a misdemeanor. Battery, California Penal Code 242, involves using force or violence and is typically much more serious.
Note: a battery is a “wobbler” in certain cases, meaning it can be charged as a misdemeanor or felony. For more information on what’s eligible for reduction to a misdemeanor, read here.
Both an assault and battery have varying degrees of severity depending on the type. Simple assault and simple battery charges, for instance, are much less serious than aggravated assault and aggravated battery charges. Keep in mind that when dealing with battery, if a person is greatly injured, it could increase a simple battery to aggravated battery. California measures severity by injury. An additional consideration is civil liability for assault and battery torts, but we’re going to focus on the criminal liabilities here.
Finding information about assault can be confusing because it’s so often mixed up with battery. So, what is assault? If someone physically assaults you, it means the following things are true:
Sometimes the only difference between an assault and battery is that your attempt to inflict violence didn’t work. Here’s an example of a simple misdemeanor assault:
Two people are in an argument. One picks up their fist and threatens to punch the other person, causing them immediate fear and apprehension of being hit. OR this same person picks up their fist and takes a swing, but the other person dodges it, so there is no actual violence, just an attempt.
Let’s pick right back up with the punching example given above. The main difference between battery, California PC 242 says, is ACTUALLY using violence or force. In the example above, let’s say after missing on the first swing, this person swings again and this time hits the person directly in the face. The person complains of a little soreness,but is not seriously hurt. This is simple battery.
Note that battery includes not only harmful but offensive touch, and sexual battery (California PC 243.4), can be charged as either a misdemeanor or felony (discussed in Sex Crimes). The main difference between a misdemeanor or felony is often force or misuse of authority.
Based on relationship, battery can also fall under domestic violence. California PC 243(e)(1) directly addresses force and violence used on an intimate partner. Read more about domestic violence on our related page here.
The varying degrees of battery, mainly simple battery vs. aggravated battery, in part make the difference between a misdemeanor charge and a felony charge.
When it comes to assault and battery charges, jail time possibility and fines vary based on whether or not the offense is charged as a misdemeanor or felony.
Simple assault and simple battery are misdemeanor offenses. A simple misdemeanor assault is punishable by up to six months in county jail and/or $1,000, unless the assault is against certain government, medical and related authorities. (This could also result in a fee increase up to $2,000 and up to a year in jail.) A simple misdemeanor battery is punishable by up to six months in county jail and/or $2,000.
Where things get complicated with assessing a potential assault and battery punishment is that an aggravated assault sentence or aggravated battery sentence often brings a host of other penalties and can escalate the offense to a felony.
If you use a deadly weapon (such as a knife or gun) in a threatening way, even if you don’t use it, you will likely get charged with assault with a deadly weapon, an aggravated assault under California PC 245(a)(1). A wobbler, if still a misdemeanor, the sentence escalates to a possible 364 days in jail. As a felony, the penalty can jump up to four years in prison.
Aggravated battery charges are even more serious because this means someone got really hurt, and depending on the severity of the injury, can also escalate the charge to a felony with up to four years in prison as a charge unto itself, but can also be added as an enhancement to a battery charge, increasing the penalty even more. Either way, the victim’s injury is the basis for the increased punishment.
When is battery a felony?
It’s a common question, and the answer is relatively straightforward: aggravated battery, California PC 243(d), is a wobbler, and can be charged as a felony or misdemeanor.
What is aggravated battery? It’s all about how hurt the victim gets, and battery with serious bodily injury can bump up what would have been a misdemeanor simple battery to a felony aggravated battery charge. If someone’s physical condition is seriously impaired, it qualifies as serious bodily harm or injury. Common examples include a concussion or broken/fractured bones, but also includes many other possibilities handled on a case-by-case basis.
Here’s a real-life example of a simple battery turned aggravated battery due to injury:
Two men get into a bar fight. They get kicked out and take it outside to a parking lot. One man pushes the other to the ground and he lands with his neck on the curb, he hits his spinal cord and is paralyzed. The serious bodily injury makes it aggravated battery, and an aggravated battery sentence is much more severe.
As the example above demonstrates, a simple bar fight may result in very serious consequences. The best course of action is to seek counsel right away to best help your case, before you go to court. See here about the difference a strong, proper defense can make.
What if you were defending yourself? In order to make a case for your innocence, your defense must prove you were protecting yourself or someone else from imminent harm, acted in self-defense, and did not use excessive force. Proving you used no more than the amount of reasonable force required is one of the many reasons why seeking proper defense right away is paramount to proving your innocence. Be proactive and don’t wait because any statement you make without legal counsel could be to your detriment.
Threats can truly come back to bite you. Even if you weren’t going to cause an imminent (immediate threat), a Criminal Threat, falling under California PC 422, is a strike-able offense. If you threaten something specific, electronically or verbally, and it makes someone afraid you are going to hurt them or their family, you could be charged. When in doubt, don’t make the threat, or if too late, contact a defense attorney right away.
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