In California, assault and battery are two different crimes. Assault and battery each has its own four elements that must be satisfied before a jury can find a defendant guilty of the crime. Put simply, if there was an attempt to do harm on another person, a person may be charged with assault. But if actual harm was done on another person, then the person may be charged with both assault and battery.
California Definition of Assault
California Penal Code Section 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." For a person to be guilty of assault, these four elements must be proved:
- The person did an act that, by its nature, would have probably and directly resulted in the application of force on the other person.
- The person did the act willfully.
- When the person did the act, she was aware of facts that would lead a reasonable person to realize that the act, by its nature, would probably and directly result in the application of force on the other person.
- When the person acted, she had the present ability to apply force on the other person.
Read More: California's Statute of Limitations: Assault
The Elements of Assault
In its jury instructions, California provides additional explanation regarding the elements that make up assault. Element number two, requiring that the person did the act willfully, is satisfied so long as the person did the act on purpose or willingly. The person does not have to have intended to gain any advantage, break the law or hurt the other person.
For the terms "application of force" (element one and three) and "apply force," (element four), any kind of harmful or offensive touching is enough. The touching can be minimal – even contact with the other person's clothing is enough, and it need not cause any physical injury or pain. Furthermore, the touching can be indirect, meaning that the person would have caused an object or another person to touch the other person. Also, the person need not have intended to use force against the other person when she acted nor have actually injured anyone.
Defenses to Assault
A person defending against an assault charge may argue that one or more of the required four elements of the crime haven't been satisfied, including that he didn't act willfully and didn't actually have the ability to apply force on the other person. A person may also claim that he acted in self-defense or in defense of someone else.
To find a person guilty when there is a claim of self-defense or defense of another, the jury must find, in addition to the four elements required for the crime of assault, that the person did not act in self-defense or in the defense of another. California's courts have specifically ruled that voluntary intoxication is not a defense to assault. Nor is claiming that the other person is guilty of contributory negligence, meaning that the other person contributed in some way to the situation, which may be a defense to some other charges.
Penalties for Assault
California Penal Code Section 241 lays out the penalty for conviction of an assault. Assault is punishable by imprisonment in the county jail for a maximum of six months, a fine of up to $1,000, or both.
The penalty may increase for assaults committed against certain people employed in the public safety, public health and law enforcement sectors. For example, an assault against a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, animal control officer or a search and rescue member while performing job duties is punishable by imprisonment in a county jail for up to one year, a fine of up to $2,000, or both.
Assault against a physician or a nurse while she is giving emergency medical care outside a hospital, clinic or other health care facility carries the same penalty. The penalty only applies, however, if the person who committed the act knew or should have reasonably known at the time that the victim was a physician or a nurse.
California Penal Code Sections 241.1 through 241.8 provide additional penalty consequences for assault against specific persons, such as a school employee (Section 241.6), a highway worker (Section 241.5) and a member of the United States Armed Forces (Section 241.8). And Section 241.2 lays out the penalty for an assault done not against a specific type of person, but at a certain location: An assault that takes place on school or park property is punishable by imprisonment in the county jail for up to one year, a fine of up to $2,000, or both.
California Definition of Battery
California Penal Code Section 242 defines battery as "any willful and unlawful use of force or violence upon the person of another." Unlike assault, where no actual contact is required, battery requires that there be some sort of actual contact.
Like assault, four elements must be proved to find a person guilty of battery. The four elements are:
- The person touched the other person or caused the other person to be touched, with the intent to offend or harm him.
- The other person did not consent to the touching.
- The other person was harmed or offended by the touching.
- A reasonable person in the person's situation would have been offended by the touching.
The Elements of Battery
In regard to the requirement of an actual touching, the touching doesn't have to have caused any bodily harm, pain or mark to the other person. It also doesn't have to have been violent or severe. A 1988 court case established that even the least touching may result in a battery conviction. Similar to assault, there need not be any direct body-to-body contact. A person can be guilty of battery if he causes something or someone else to come into contact with the other person.
Defenses to Battery
Once charged with battery, a person may argue that one or more of the required elements of the crime of battery has not been satisfied. For example, a person may argue that she had no intent to offend or harm the other person. Another possible defense to a battery charge is self-defense or defense of another. As with assault, voluntary intoxication and contributory negligence are not defenses to battery.
Penalties for Battery
Under California Penal Code Section 243, penalty for the crime of battery may consist of imprisonment in a county jail for up to six months, a fine of up to $2,000, or both. As with assault, battery against certain persons or committed in certain locations carry a heavier sentence. For example, battery against a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, traffic officer, animal control officer, or a search and rescue member when engaged in the performance of their duties, whether on or off duty, is punishable by up to one year imprisonment in county jail, a fine of up to $2,000, or both. To receive the higher penalty, the person who committed the touching must have known or reasonably should have known that the victim was engaged in such a profession.
California Penal Code Section 243(e)(1) specifically addresses domestic violence battery. When a person commits battery against someone she currently has or had a dating or engagement relationship with, the penalty is imprisonment in a county jail for up to one year, a fine of up to $2,000, or both. Additionally, if probation is granted instead of jail time and/or a fine, then the convicted person must successfully complete a batterer's treatment program or other appropriate counseling program for a minimum of one year. The guilty person may also be ordered to make payments to a battered person's shelter and pay for the victim's counseling.
Assault is the attempt of force on another person, while battery is the actual use of force on another person.
Karen graduated from Southwestern Law School in 2003 with a Juris Doctor degree. She has worked for several law firms, providing legal services in various fields including immigration, housing, bankruptcy and family law.