Introduction

Assault and battery are two separate and distinct crimes in California despite many people referring to a battery as an assault, and others referring to one act an “assault and battery.”  An assault, lacks the touching of the person of another.  Whereas, a battery requires contact with another person.

There are many different varieties of assaults and batteries, and each requires different elements to be proven and carries different consequences.  Depending on the circumstances, these crimes can be charged as misdemeanors or felonies.  Call Chico Assault Lawyer Matthew Luzaich to discuss your assault or battery charges today for free.

The Law Offices of Matthew S. Luzaich will provide you with a free consultation with an assault lawyer regarding your charges.  We are located at East and Esplanade in Chico, CA.

The Statute(s)

Penal Code § 240: An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Penal Code § 242: A battery is any willful and unlawful use of force or violence upon the person of another.

The Elements

Assault Charge 

A criminal assault lawyer will first look to the elements of a crime to establish whether the prosecutor has a strong or weak case.  To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant did an act that by its nature would directly and probably result in the application of force to a person;
  2. The defendant did that act willfully;
  3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [AND]
  4. When the defendant acted, (he/she) had the present ability to apply force to a person(;/.) (CALCRIM No. 915)

 

Battery Charge

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant willfully [and unlawfully] touched in a harmful or offensive manner.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

The touching can be done indirectly by causing an object [or someone else] to touch the other person.

Words alone, no matter how offensive or exasperating, are not an excuse for this crime.

Penalties

The following penalties are for the basic offenses.  Depending upon who it is the person is alleged to have assaulted or battered, the penalties may be more severe. Assault Lawyer Matthew Luzaich explains that oftentimes the District Attorney will not seek anything close to the maximum punishment, and will negotiate with a lawyer for a substantially reduced sentence.  However, where serious bodily injury occurs, even more significant punishment will result (See Miscellaneous information below for more details).

  • Assault

An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. (Penal Code § 241(a)

  • Battery

A simple battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. (Penal Code § 243(a))

Defenses

  • Lack of Proof of One or More of the Elements of the Crime

If the prosecutor cannot prove beyond a reasonable doubt each element of the crime, the person should not be convicted.  For example, one of the elements of assault is that the person must have the present ability to apply force to the victim.  If it was physically impossible for the person to apply force to the victim, the person is not guilty of the crime of assault.

  • Self-defense and the Defense of Others

A person has a right to defend him/ herself and others.  The following is what a judge or jury may hear and consider regarding a person’s right to defend him/herself or another person.

A defendant is not guilty of assault or battery if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The person acted in lawful (self-defense/ [or] defense of another) if:

  1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] ) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];
  2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND
  3. The defendant used no more force than was reasonably necessary to defend against that danger.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was (imminent danger of bodily injury to (himself/herself/ [or] someone else)/[or] an imminent danger that (he/she/[or] someone else) would be touched unlawfully).

Defendant’s belief must have been reasonable and (he/she) must have acted because of that belief.

The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/ [or] defense of another). When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.

If you find that threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.

If you find that the defendant knew that had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.

Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.

If you find that the defendant received a threat from someone else that (he/she) reasonably associated with , you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).

A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ ) has passed. This is so even if safety could have been achieved by retreating.

The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of . (CALCRIM 3470)

  • False Accusations

The crimes of assault and battery are highly susceptible to false allegations and exaggeration in reporting.  It’s not uncommon for a person seeking revenge or trying to avoid arrest him/herself to make a false claim that the other person was the aggressor.  A criminal defense lawyer will investigate this through witness interviews, exploring prior claims by the alleged victim, the victim’s criminal history, and other potential evidence that could exonerate a person who is falsely accused.

  • Right to Eject a Trespasser

A person can eject a trespasser from his or her land. The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property).

If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may use reasonable force to make the trespasser leave.

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. (CALCRIM 3475)

  • Right to Defend Property

The owner [or possessor] of (real/ [or] personal) property may use reasonable force to protect that property from imminent harm. [A person may also use reasonable force to protect the property of a (family member/guest/master/servant/ward) from immediate harm.] (CALCRIM 3476)

  • Lack of “willfulness”

The law requires that you “willfully” did an act that by its nature would directly and probably result in the application of force to a person to be found guilty of assault, and that you “willfully” used force against the person of another to be convicted of a battery.  If you did not act willfully, you have a defense to this element of these crimes.  A person who accidentally almost makes contact, or actually does make contact with another, does not act willfully.  For example, if a person trips and falls, and on the way to the ground accidentally elbows another person, the accused person has not acted willfully in elbowing the other person.  Thus, the element of willfulness is not satisfied.

  • Parents’ Right to Punish a Child

A parent has a right to use physical force to discipline a child so long as a reasonable person would find that the force/ punishment used was necessary under the circumstances and the force or method used was reasonable.

Call Chico Assault Lawyer Matthew Luzaich to discuss possible defenses you may have if you’ve been charged with assault or battery.

Miscellaneous Information

A battery may be elevated to the felony level if the victim suffered serious bodily injury.  Serious bodily injury is defined as a serious impairment of physical condition.  Such an injury may include, but is not limited to: loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement.

A battery causing serious bodily injury is punishable by up to one year in county jail or imprisonment for two, three or four years.

As with any charges, the crime a person is arrested for may not be the crime the person is ultimately charged with.  A skilled assault lawyer may be able to convince the prosecutor not to charge a person as recommended by the arresting officer.  The power to charge a person in most cases is held by the prosecutor’s office alone.  This means that the police usually recommend charges and the DA’s office has the final discretion of what to charge a person with.  Sometimes the DA’s office will decline to charge a person for lack of evidence, or decrease the level of the crime.  It is also not uncommon for the DA’s office to change the offense charged, add charges or increase the severity of a charge. Being represented as early in your case as possible by an experienced assault lawyer may be your best bet at swaying the prosecutor’s charging decision.

What You Should Do

An assault or battery conviction can mean imprisonment, fines, probation, anger management counseling, community service and other punishment.  In addition to criminal punishment, the stigma attached to convictions for violent offenses can impact other areas of your life as well including employment opportunities. Consulting an assault lawyer about your case is a must.  Chico Assault Lawyer Matthew Luzaich provides free initial consultations to discuss your assault charge or battery charge.  He will discuss with you the facts of your case, the applicable law, possible defenses and possible outcomes. He will not sugarcoat or make promises he can’t keep.  He will tell you the truth, what he can do to help you, and tell you what to expect.  Assault Lawyer Matthew Luzaich provides criminal defense services in the counties of Butte, Glenn, Sutter, Tehama and Yuba.  Payment plans are available to fit your budget.  Call today for your free consultation.

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