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How to Defend Assault and Battery Charges in California?

Updated: Nov 28, 2022

Learn the possible defenses to assault and battery charges in California

Assault, as described by California Penal Code (PC) 240, is a misdemeanor that includes instilling fear of imminent violence (whether attempted or threatened). Battery (California Penal Code 242) is a much more serious crime involving force or intimidation.

Notice that in some situations, the battery is a "wobbler," meaning it can be charged as a crime or a felony. The best Criminal Defense Attorney In California may be able to help you with the complicated details of your case.

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Depending on the form of attack or battery, there are different degrees of severity. Charges of simple assault and battery, for example, are much less severe than charges of aggravated assault and battery.

Keep in mind that if a person is seriously hurt, a simple battery can quickly escalate to an aggravated battery. California assesses seriousness based on the severity of the injury. Civil responsibility for assault and battery torts is also a factor to consider, so we'll stick to criminal liability for now.

What is Characterized as an Assault?

Since assault is often confused with battery, finding facts about it can be difficult. So, what does it mean to be assaulted? If you are physically assaulted, it means that the following is true:

  • It creates an imminent danger of Aggression or coercion.

  • They either do or say something that makes you fearful or apprehensive immediately.

  • They acted knowing that their acts could hurt or force the other individual.

The only difference between an assault and a battery is that you didn't succeed in inflicting violence. Here's an example of a simple attack misdemeanor:

A quarrel has erupted between two people. One individual raises their fist and tries to punch the other, instilling fear and anxiety in the other. Or this same person raises their fist and swings it at the other person, but the other person avoids it, so there is no physical aggression, only a threat.

Assault (Simple)

In California, swinging at others during a heated confrontation (and missing) is considered a clear attack if the intended victim is within striking distance. While threats to hit someone with an object are not considered assault unless they are followed by an act or behavior that shows intent to carry out the threat, threats to hit someone with an object are considered assault when they are accompanied by an action that shows intent to carry out the threat. Regarding assault charges, the victim's identity plays a big role in deciding the seriousness of the crime and the potential penalty.

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Assaults on many healthcare professionals who offer emergency services outside of a hospital or clinic, as well as assaults on many public employees who are doing their duties, carry harsher punishments than mere assaults, as long as the offender knew or should have known that the victim was a healthcare professional or a public worker doing his job. Among the healthcare professionals and government employees are:

  • Nurses and doctors

  • Paramedics and emergency medical technicians

  • Employees at the school

  • A group of firefighters

  • Lifeguards are people who protect people from damage.

  • Officers in charge of animal welfare

  • Staff on the highway

  • Members of the US military, when their military service inspires the attack.

  • Employees of public transit

  • Employees of the probation service

Assault (Wobblers)

The following are "wobblers," or simple attacks that may be charged as felonies or misdemeanors:

  • attack on a jail or prison official, such as a corrections officer

  • attack on a police officer from the school district, and

  • A party to the case assaulting a juror or substitute juror.

What is Characterized as a Battery?

According to California Penal Code 242, the key distinction between battery and assault is the actual use of Aggression or force. Let's assume that after missing on the first swing, this person swings again, this time hitting the person square in the chest. The individual complains of minor discomfort but is not seriously injured. This is a straightforward battery.

Battery requires not only harmful but also offensive contact, and sexual battery (California PC 243.4) is punishable as a misdemeanor or felony (discussed in Sex Crimes). The key distinction between a misdemeanor and a felony is often the use of force or the abuse of authority.

A battery may be classified as domestic abuse, depending on the nature of the relationship. PC 243(e)(1) of the California Penal Code specifically discusses the use of force and abuse against an intimate partner. On our related page, you can learn more about domestic abuse.

The different degrees of battery, primarily simple battery vs. aggravated battery, play a role in determining whether a charge is a misdemeanor or a felony. A Los Angeles Criminal Defense Attorney can further explain this to you.

Battery (Simple)

During an altercation, striking another person with a fist or shoving them are both examples of battery. The battery may also be described as pushing or hitting someone with a small object, causing physical harm to the other person.

The victim's identity, as with the attack, is a key factor in deciding the seriousness of a battery crime and the potential penalty. Many public workers and healthcare providers, such as firefighters, lifeguards, public transit workers, animal control officers, and probation department employees, face harsher penalties than simple battery against other victims if the perpetrator knew or should have known that the victim was a public worker.

Simple battery against other victims is a misdemeanor, but the following simple battery charges carry harsher punishments. Assaults are made against:

  • a romantic partner or members of one's family (domestic violence battery)

  • a senior citizen or a disabled adult

  • a commuter on public transportation

  • anyone in a public transit vehicle or on public transit land

  • a school employee in the course of his or her duties, or in retribution for acts taken by the school employee in the course of his or her duties

  • a contractor on the highway

  • when conducting his duties as a sports official at a sporting event, and

  • someone on the grounds of a school, a public park, or a hospital.

Battery (Wobblers)

Battery offenses that may be charged as felonies or misdemeanors include:

  • a crime committed against a law enforcement officer when he or she is doing his or her duties

  • by a party in the case against a juror or substitute juror

  • the battery on different public employees or healthcare providers (resulting in injuries requiring medical treatment)

  • While performing his duties or in retribution for action taken while performing his duties, a school employee is subjected to the battery (resulting in injury requiring medical treatment)

Intentional or Willful Behavior is Required

For an act to be considered criminal assault or battery, it must be done on purpose. An unintentional behavior is not a crime. For example, someone does not have criminal intent if they brush up against a friend in a sexually provocative manner as a joke. However, an offender's argument that he was unaware that a deliberate, angry, and/or threatening act was illegal is seldom a defense and does not negate intent.

California's Assault Penalties

If you are convicted of a simple assault, you may face the following penalties:

  • a maximum of six months in prison

  • a fine

  • Probation period of up to six months

Simple assault done against a healthcare provider or public employee (as mentioned above) while performing his duties can result in the following penalties:

  • up to a year in prison

  • a fine

  • Probation period of up to one year

Wobbler assault charges will result in the following consequences:

  • up to a year in prison or

  • Depending on the offender's criminal background, he or she could be sentenced to sixteen months, two years, or three years in a county jail or state prison.

  • a fine

  • Probation for one or three years is possible

California's Battery Penalties

The following are the basic penalties for simple battery charged as a misdemeanor:

  • a maximum sentence of six months in county prison

  • a fine

  • Probation period of up to six months

Some battery offenses, such as battery against a healthcare provider or public employee, domestic violence battery, and battery on school grounds, carry a stiffer penalty:

  • a maximum sentence of one year in county prison

  • a fine

  • Probation period of up to one year

The following are the penalties for felony wobbler batteries:

  • Depending on the offender's criminal background and pending criminal charges, the sentence may range from sixteen months to two to three years in county jail or state prison.

  • a fine if the victim is a juror, or fined for much more if the victim is a public transportation worker or passenger) and a year in prison

  • Probation for up to three years is possible

The battery on a Law Enforcement Officer

If the victim or target of a simple battery charged as a felony is a law enforcement officer in the course of his duties (even if he is acting as a private security officer), and the suspect knew or should have known the victim was a police officer, the following penalties may apply:

  • Depending on the offender's criminal background and pending criminal charges, he or she can spend sixteen months, two, or three years in county jail or state prison.

  • a fine

  • Probation for up to three years is possible


The court will order probation instead of jail time for the duration of the sentence or after the defendant has served some time in prison. In a California assault or battery case, for example, a judge will sentence you to 30 days in prison and five months of probation.

An individual on probation must meet with a probation officer daily and adhere to the court's conditions, including no additional arrests or convictions, therapy, community service, or electronic home detention, also known as "house arrest." The person on probation wears an electronic monitoring system or "ankle bracelet," and is normally confined to the home, and works under electronic home detention. If an offender breaches a probation condition, he will be convicted and sentenced to complete the remainder of his term in prison.


An individual convicted of assault or battery must pay restitution, which includes paying the victim for any costs incurred due to the crime, such as medical care or therapy. Depending on the damages to the victim and other factors, the court will order someone convicted of a misdemeanor to pay fines in restitution and someone convicted of a felony to pay fines in restitution.

Restitution orders are the norm; the court may only refuse to order restitution under exceptional circumstances where there are compelling reasons.

Consider one of our prescreened California Lawyers in your California Attorney Search.

Pre-Trial Options and Pleas

If you have been charged with assault or battery, a Criminal Defense Attorney in Los Angeles will look at the case and deduce if you were wrongfully charged or if there are any grounds why the case should be dropped before going to trial. If the charges are not dropped, an California Criminal Defense Lawyer might be able to reach a plea deal with the judge on your behalf or prepare a case and defend you at trial if you think or feel you have been wrongfully convicted or if no fair plea options exist. Prosecutors also compromise with defendants and offer to make them plead guilty to a less serious crime. Alternatively, the prosecutor can consent to a lesser penalty, such as probation, in return for a guilty plea.

Defense Against an Attack with a Deadly Weapon

A simple attack with a deadly weapon, also known as an "ADW," is a simple assault involving the use of a deadly weapon.

Attacking with a deadly weapon is a more serious offense than mere assault, so the penalties are more severe. A battery or injury of the victim is not required, just as it is not required for simple assault.

The concept of a "deadly weapon" is a weapon that kills people. Any object, tool, or weapon that is inherently lethal, other than a firearm, is deadly. A firearm that has the potential to cause or is likely to cause death or serious bodily injury. Various objects that aren't necessarily "deadly" can be turned into "deadly weapons" depending on their use. A brick, for example, is not always lethal, but if it is used as a projectile and hits someone in the back of the head, it is called a "deadly weapon."

Crime Scene Elements (What it takes to be convicted)

To be found guilty of assault with a deadly weapon, the prosecution must establish beyond a reasonable doubt:

  • The defendant committed an act with a lethal weapon that would, by its very nature, result in the application of force to a person

    • The phrases "application of force" and apply force refer to touching in a harmful or offensive way for the purposes of this statute.

    • Even the tiniest touch may be enough if performed in a rude or angry manner.

    • It is sufficient to make physical contact with another human, even through his or her clothes. It is not necessary for the touching to cause any discomfort or damage.

    • By allowing an entity (or someone else) to contact the other person, touching may also be achieved indirectly.

    • So, in a nutshell, the defendant used a lethal weapon to engage in behavior that would normally result in injury to another person or offensive contact with him or her.

  • That was a deliberate act on the part of the defendant

    • The defendant behaved "intentionally."

    • "Willfully" is described as "acting of one's own volition."

    • When someone does something knowingly or on purpose, they are said to be acting willfully.

    • You don't have to plan to violate the law, harm someone else, or receive some benefit; all you have to do is intend to commit the act.

    • When the defendant acted, he or she was aware of evidence that would cause a rational person to believe that (his or her) conduct would, by its nature, result in the use of force against another. You knew you were in a position where you were likely to hurt someone else when you did it.

    • It's important because the context of this law section is often misunderstood. It relies on your understanding of the situation or circumstances, not your desire to harm someone or your knowledge that the act will actually harm someone.

  • When the defendant acted, he or she was aware of evidence that would cause a rational person to believe that (his or her) behavior would, by its nature, result in the use of force against someone

Defense for an Attack with a Deadly Weapon Charge

1. Self-protection

One potential legal defense to attack is self-defense. You must have acted fairly in both your estimation of the threat to you and the amount of force you used to respond to that threat for the defense to apply.

To be prepared for self-defense, you must:

  • You would have had a reasonable belief that you were in imminent danger of bodily harm or being unfairly touched.

  • "Imminent risk" implies that danger is about to occur.

  • The danger of being hurt in the future.

  • You would have reasonably believed that immediate use of force was required to protect yourself from that threat.

  • You must not have used more force than was reasonably appropriate to protect yourself from that threat.

  • Being fair entails ceasing to use force until the threat has passed.

  • The risk is over until your attacker is incapacitated.

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To put it another way, you'd have to be in a life-or-death situation to justify using a lethal weapon. A chance of minor injury is insufficient. When the threat to you has passed, the right to use force has also passed.

If you were looking for a fight on purpose, you had no right to use this defense.

An individual does not have the right to self-defense if he or she intentionally provokes a battle or quarrel to justify using force.

2. Others' Defense

You may also effectively protect yourself against an assault charge by claiming that you were defending someone else. The rules for defending others are the same as the rules for self-defense.

3. Right to Drive Out a Trespasser from Your Property

If you order a trespasser to leave, they have a fair amount of time to do so. If they refuse to leave and pose a threat, you can use fair force to compel them to leave. The definition of "reasonable force" is what a person in a similar situation with a similar experience would do.

The burden of proof is on the prosecution to prove that the amount of force you used was excessive.

4. The Right to Defend Land and Property

  • You can use lawful force to protect your property from injury.

  • You have the right to use fair force to protect the property of others.

  • Words, no matter how offensive and non-threatening actions, are insufficient to justify or defend an attack or battery.

  • Intoxication of one's own volition is not a defense against attack.

Conviction of Assault with a Deadly Weapon Punishments

If you are convicted of assault with a deadly weapon, you may face the following penalties:

  • a sentence of either two, three, or four years in state prison or a sentence of six months to a year in county jail

  • A fine may be imposed.

  • Both incarceration and monetary penalties.

  • Furthermore, a criminal conviction involving a car will result in losing driving rights for the rest of one's life.

Assault with a Firearm

Assault with a firearm is described by California State Penal Code 245 as "simple assault with a deadly weapon." This indicates that the details of the law governing assault with a weapon are similar to those governing simple assault. Since assault with a weapon is a much more serious crime than simple assault, the penalties are often much more severe.

Crime Scene Elements (What it takes to be convicted)

To be found guilty of assault with a weapon, the prosecutor must demonstrate beyond a reasonable doubt that:

  • The defendant committed an act with a weapon that, by its very nature, would result in the application of force to another person

  • That was a deliberate or willful act on the part of the defendant

  • When the defendant acted, he or she was aware of evidence that would cause a rational person to believe that (his or her) conduct would, by its nature, result in the use of force against someone

  • When the defendant behaved, he or she had the right to use force against a person with a weapon.

Greater Offenses

1. Armed assault with a semiautomatic weapon

Semiautomatic firearm definition: A semiautomatic pistol removes a fired cartridge and chambers a new one with each pull of the trigger. Anyone convicted of assault with a semiautomatic weapon faces three, six, or nine years in state prison.

2. Machine gun, assault rifle, or.50 BMG rifle assault

A machine gun is described as any weapon that (shoots/is programmed to shoot/ [or] can easily be restored to shoot) more than one shot automatically with a single pull of the trigger and without needing manual reloading.

Any person who performs an attack on the person of another with a machinegun, as described in Section 16880, or an assault weapon, as defined in Section 30510 or 30515, or a.50 BMG rifle, as defined in Section 30530, will be sentenced to 4, 8, or 12 years in state prison.

What if an Officer was Assaulted?

The Penal Code divides the crime of battery on a peace officer into two parts to differentiate between a battery that causes injuries to the victim and a battery that does not. A battery that causes damage carries a stiffer penalty.

The offense of simple battery on a peace officer is known as the battery on a peace officer. A "peace officer" is a law enforcement officer who is acting in his or her official capacity as a law enforcement officer, whether on duty or off. However, it also entails law enforcement officers serving as security guards on the side.

Crime Scene Elements (What it takes to be convicted)

To be found guilty of battery on a peace officer, the prosecutor must establish beyond a reasonable doubt:

  • The victim was a peace officer performing his or her official duties when he or she was killed.

  • The defendant intentionally (and unlawfully) made negative or aggressive contact with the officer.

  • The offender knew or should have known that the victim was a police officer conducting their duties when he or she behaved.

If you're accused of injuring a police officer, you should:

  • As a result of the contact, the victim was injured.

  • The defendant did not act in self-defense or to protect another person.

  • As mentioned in the preceding section, this crime is essentially a simple attack on a peace officer.

The prosecutor would have to show that the officer was legitimately performing their duties as a peace officer at the time of the attack and that they should have known that they were a peace officer at the time. Any physical damage that necessitates medical attention is considered an injury.

However, determining whether or not an injury necessitates such care cannot be done solely based on whether or not the individual sought or received treatment. The jury must decide this question based on the injury's type, scope, and severity. Your Criminal Defense Attorney can argue for you in a way that favors your interests.

Battery Resulting in Serious Physical Injury

What does it mean to have a "severe bodily injury"?

"Severe bodily injury" refers to a serious physical disability that includes, but is not limited to:

  • Becoming unconscious

  • Accidental concussion

  • A fractured bone

  • Long-term loss or disability of any bodily member or organ's function

  • A wound that necessitates a lot of suturing

  • A severe disfigurement

  • Scratches, abrasions, neck or back strains, minor lacerations, and other minor injuries are insufficient grounds for this charge.

Crime Scene Elements (What it takes to be convicted)

The prosecutor must first prove beyond a reasonable doubt that you are guilty of simple battery before you can be accused of battery with serious bodily injury. Click here to read about the components of a simple battery.

Suppose the prosecution establishes that you are guilty of simple battery beyond a reasonable doubt. In that case, they must also establish that the damage incurred by the battery meets the concept of serious bodily injury.

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