In California, the main difference between the crimes of assault and battery is whether contact was made. If no contact was made, it can be assault. If contact was made, it is usually both assault and battery. Because contact was made, the penalties for a conviction for battery are often more severe than for assault.
| Assault | Battery | |
| Definition | Willfully create the apprehension that you were about to use force | Willfully and unlawfully touch another person in a harmful or offensive manner |
| Penalties | Typically 6 months in jail and up to $1,000 in fines | Typically 6 months in jail and up to $2,000 in fines |
California assault law
According to California law:
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”[1]
Prosecutors have to prove the following criminal elements of assault beyond a reasonable doubt:
- you willfully did an act that by its nature would directly and probably result in the application of force to another person,
- when you acted, you were aware of facts that would lead a reasonable person to realize that your act would directly and probably result in the application of force to someone, and
- when you acted, you had the present ability to apply force to someone.[2]
The criminal defense lawyers at our law firm often stress to clients that assault does not require there to be contact.
California battery law
Under California criminal law:
“A battery is any willful and unlawful use of force or violence upon the person of another.”[3]
The criminal elements of a battery in California are:
- you willfully and unlawfully touched someone else in a harmful or offensive manner, and
- you did so while not acting in self-defense or defense of others and were not reasonably disciplining a child.[4]
Our criminal defense attorneys often point out that, while battery requires contact, any amount of contact or physical force suffices. Furthermore, the victim of the battery does not need to suffer a physical injury.[5]
Differences between assault and battery charges
The three main differences between the crimes of assault and battery in California are:
- whether physical contact is necessary,
- the penalties of a conviction, and
- aggravating factors.
Physical contact
Battery requires there to be physical contact. Assault does not. Assault is the attempted infliction of physical contact. Battery is the actual infliction of it.
Our criminal defense lawyers often describe assault as being an attempted battery, while a battery is a completed assault.
Note, though, that even the slightest amount of harmful or offensive contact can lead to an assault becoming a battery.[6]
For example: Knowing that Carl does not smoke, Mary deliberately blows cigarette smoke in his face.
Additionally, the contact does not have to be direct. Contact with the alleged victim’s clothing or anything else attached to the victim is enough.
For example: Dave deliberately crashes his car into Marlene’s vehicle.[7]
Penalties
Because battery involves physical contact and, often, the physical harm that it causes, the penalties for battery are often higher than for assault.
A conviction for simple battery, or one that did not cause a serious injury or involve any other aggravating factors, is a misdemeanor that carries up to:
- 6 months in county jail, and/or
- $2,000 in fines.[8]
A conviction for a simple assault charge, or misdemeanor assault with no aggravating factors, carries up to:
- 6 months of jail time, and/or
- $1,000 in fines.[9]
These penalties may be in addition to other criminal charges, like for domestic violence.
In addition to these criminal penalties, assault and battery cases can both lead to civil lawsuits being filed by the alleged victim.
Aggravated factors
Assault and battery each have some different aggravating factors that can increase the penalties of a conviction for these violent crimes.
Both assault and battery are aggravated if you commit the offense on a:
- law enforcement officer or other peace officer, like a firefighter, or
- school employee.
Aggravated assault is when you commit assault:
- with caustic chemicals,
- with a firearm,
- with a deadly weapon other than a firearm,
- with a stun gun,
- with an intent to commit a sexual felony, or
- by means likely to produce great bodily injury.
A battery offense can become aggravated battery if it:
- is done to a custodial officer, or
- produces a serious bodily injury.
These aggravating factors can substantially increase the potential penalties of a conviction. For example, committing an assault with the intent to commit a felony, like sexual battery, is a felony assault offense that carries up to 6 years in state prison.[10]
Examples
Some examples of an assault are:
- standing in front of someone and trying to punch them, but missing,
- pointing a gun at someone, and
- throwing a rock at a police officer, but missing.
Some examples of battery are:
- punching someone in a bar fight,
- shoving a stick into the spokes of someone’s bicycle as they pass by, and
- kissing someone without their consent.
Legal defenses
Many of the same legal defenses apply to both assault and battery in California. Our criminal defense lawyers have found that the 2 most common legal defenses are probably:
- self-defense, and
- lack of intent.
The specific circumstances of your case should determine which legal defense strategy you use.
Self-defense
The elements of self-defense are:
- you reasonably believed that you were in imminent danger of suffering a bodily injury,
- you reasonably believed that the immediate use of force was necessary to defend against that danger, and
- you used no more force than was reasonably necessary to defend against it.[11]
In California, once you claim that you acted in self-defense, it is up to the prosecutor to prove, beyond a reasonable doubt, that you did not.[12]
Lack of intent
Both assault and battery require you to act willfully. If you can present evidence that the physical contact or your actions were accidental, it can be a strong defense.
For example: Paul is on a bus. He turns to get off at a stop and accidentally elbows Maurice in the face.
Legal Citations:
[1] California Penal Code section 240 PC.
[2] California Criminal Jury Instructions (CALCRIM) No. 915.
[3] California Penal Code 242 PC.
[4] CALCRIM No. 960.
[5] People v. Martinez, 3 Cal.App.3d 886 (1970).
[6] CALCRIM No. 960.
[7] Facts from People v. Dealba, 242 Cal.App.4th 1142 (2015).
[8] California Penal Code 243 PC.
[9] California Penal Code 241(a) PC.
[10] California Penal Code 220 PC.
[11] CALCRIM No. 3470.
