Defining Assault and Battery: Legal Distinctions

Assault and battery are two related yet distinct crimes in California. While the terms “assault” and “battery” are often used interchangeably, it’s important to understand the legal distinctions between them if you’re facing criminal charges.

This guide will explain:

  • The legal definition of assault vs. battery in California
  • Typical penalties for conviction
  • Common defenses used to fight these charges

Consulting with a criminal defense attorney can be key to building an effective legal strategy in an assault or battery case. Let’s take a closer look at how California law treats these offenses.

Defining Assault vs. Battery Under California Criminal Law

In California, assault and battery are defined by two separate sections of the criminal code:

  • Assault – Penal Code 240 PC
  • Battery – Penal Code 242 PC

The key difference between assault and battery under California law is that:

  • Assault is when someone intentionally causes another person to feel like they’re in danger of getting hurt. No physical contact is required.
  • Battery is the act of intentionally or maliciously touching another person without their permission. Physical contact is required.

So, assault is the threat of harmful contact, while battery is the actual, unlawful contact itself. Let’s explore the legal definitions further.

What Constitutes Assault in California?

The legal definition of assault in California consists of three main elements:

  1. The defendant acted in a way intended to cause the victim reasonable apprehension of imminent bodily harm or offensive contact.
  2. The victim was put in reasonable fear of immediate harm by the defendant’s act.
  3. The defendant’s act was unlawful.

In other words, simple assault does not necessarily involve any actual physical contact with the victim. Causing the victim to fear imminent harm or unwanted touching reasonably is sufficient.

Some examples of assault include:

  • Threatening to hit someone while raising a fist
  • Pointing a weapon at someone in a threatening manner
  • Raising a bat as if preparing to swing at someone

The key is that the defendant’s intentional act put the victim in reasonable fear of harm. Actual physical contact is not needed.

What Constitutes Battery Under California Law?

In contrast to assault, the legal definition of battery in California requires intentional, harmful, or offensive physical contact with the victim.

Under Penal Code 242 PC, a battery consists of three main elements:

  1. The defendant intentionally touched the victim
  2. The touching was harmful or offensive
  3. The victim did not consent to the touching

The touching does not need to result in pain or bodily injury. Even slight, indirect contact can constitute battery if it offends a reasonable sense of dignity.

Some examples include:

  • Hitting or punching someone
  • Spitting on someone
  • Forcefully grabbing someone’s arm
  • Intentionally bumping into someone

So long as the touching was willful and unlawful, the intent to harm or offend is enough to sustain a battery charge. Actual injury is not required.

Penalties and Sentencing for Assault and Battery Convictions

Assault and battery offenses are generally prosecuted as misdemeanors in California. However, more aggravated circumstances can lead to felony charges with harsher penalties.

Assault Penalties in California

  • Simple assault – Misdemeanor, punishable by up to six months in county jail and/or a fine up to $1,000.
  • Assault with a deadly weapon – Felony “wobbler” charge, punishable by 16 months to three years in state prison.
  • Assault resulting in serious bodily injury – Felony, 2 to 4 years in prison.


Simple assault is the lowest level charge, while assault with a weapon or resulting in serious injury is more serious. Judges have wide discretion in sentencing.

Battery Penalties in California

  • Simple battery – Misdemeanor with a maximum sentence of six months in County Jail and/or a $2,000 fine.
  • Battery on a peace officer – Misdemeanor, punishable by up to one year in county jail and/or a fine up to $2,000.
  • Battery causing serious bodily injury – Felony “wobbler,” 16 months to 3 years in prison if charged as a felony.

Similar to assault charges, battery penalties cover a wide spectrum depending on the circumstances. Judges have significant flexibility in determining appropriate sentences.

Common Legal Defenses to Assault and Battery Allegations

Despite the appearance of strong evidence, experienced assault and battery lawyers can often get assault or battery charges reduced or dismissed through effective advocacy. Some common defenses include:


One of the most powerful defenses against assault or battery charges is self-defense or defense of others. If the defendant was protecting themselves or someone else from an imminent threat of harm, their actions may be legally justified.

However, the use of force must have been necessary and reasonable to prevent or stop the threat. If the defendant used excessive force beyond what was reasonably needed to defend themselves, then self-defense may not apply.

Factors like the severity of the threat, whether the “victim” was the initial aggressor, and whether the defendant tried to retreat or de-escalate the situation can all impact a self-defense claim.

Lack of Intent

For both assault and battery charges, the prosecution must prove the defendant acted with the specific intent required by law.

For assault, they must show the defendant intended to make the victim apprehend immediate physical harm or offensive contact. Threatening words or actions meant as a joke or exaggeration, for example, would not qualify.

For battery, the defendant must have intended to commit the unwanted touching – it cannot be an accident. Grabbing someone’s arm reflexively out of surprise would likely not meet the intent requirement.

So even if the alleged “victim” reasonably feared harm or was unlawfully touched, if the intent is lacking, the charges should fail.

Misidentification of the Perpetrator

Eyewitness misidentification is a common problem in assault and battery cases when the victim and defendant are strangers. Other times, the victim knows the defendant but misidentifies them in the heat of the moment. They may honestly believe the defendant committed the crime but be mistaken.

If strong evidence shows the defendant was not actually the person who committed the assault or battery, then the charges should be dismissed. Alibi evidence, mistaken identity, or lack of other definitive proof can be used to show misidentification.

Invalid or Retaliatory Allegations

In domestic violence or divorce cases, false or exaggerated assault and battery accusations are unfortunately common as a way to retaliate against or gain leverage over the defendant. The “victim” may misrepresent minor contact or threats as more extreme than they were in reality.

These charges can also be exaggerated or fabricated outright in contentious child custody disputes as a way to prevent the other parent from getting custody rights.

If an assault or battery allegation stems from invalid reasons like these, an attorney can argue the charges themselves are unlawful and should be thrown out. Authentic evidence is key.

Mental Illness

In some cases, mental illness may prevent the defendant from forming the requisite intent to commit assault or battery or cause them to act in uncontrolled ways that the law does not punish.

Specific conditions like schizophrenia, dementia, PTSD, or severe mental handicaps can make an assault or battery charge legally unjust if the actions directly stem from symptoms of mental illness. Expert psychiatric testimony is typically required.

Related Offenses: Aggravated Assault and Aggravated Battery

More serious versions of assault and battery charges exist under California law:

Aggravated Assault

Assault with a deadly weapon or force likely to result in great bodily injury becomes aggravated assault under Penal Code 245. This is charged as a felony, punishable by 2 to 4 years in state prison.

Aggravated Battery

If the victim suffers significant bodily injury, the battery charge can be elevated to aggravated battery under Penal Code 243(d). This is also a felony wobbler, potentially punishable by 16 months to 3 years in prison.

The degree of injury inflicted is the key factor in increasing the charges and penalties.

What to Do If You Are Facing Assault or Battery Charges

Dealing with a criminal accusation is stressful, regardless of your guilt or innocence.

Here are some steps to take if you’ve been charged with assault, battery, or a related offense:

  • Do not try to talk to the alleged victim – This could be seen as intimidation or retaliation. Avoid contact.
  • Be cautious about making statements to the police – You generally do not have to provide a statement. Anything you say can be used against you later.
  • Consider hiring a criminal defense lawyer immediately – An experienced attorney can protect your rights, examine the prosecutor’s evidence, and work to get charges reduced or dismissed where possible. They’ll help you figure out the best way to go about it.
  • Follow the terms of any temporary restraining order – Violating a TRO can lead to additional charges. Abide by the court’s orders.
  • Begin gathering favorable evidence – Locate witnesses, photos, receipts, videos, or anything else that could aid your defense. An early start gives your lawyer more time to prepare.
  • Weigh your options if offered a plea deal – Your attorney can help you decide if a plea bargain is advisable or if it makes more sense to go to trial. There are pros and cons either way.

If you get convicted of assault and battery, the consequences can be pretty serious. Having a tough criminal defense attorney on your side could make all the difference. Do not hesitate to contact a firm like Kolacia Law in Rancho Cucamonga for case evaluation and legal advice. Time is of the essence.

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