Battery can be a felony. A prosecutor can charge the crime as either a felony or a misdemeanor depending on the facts of the case, the extent of the victim’s injuries, and the defendant’s criminal history.
Most jurisdictions say that battery is a felony offense if it rises to the level of an aggravated battery. A person commits aggravated battery when:
- he or she commits a battery, and
- does so under certain aggravating factors (for example, while using a gun or causing serious bodily injury or great bodily harm to the alleged “victim”)
Most states charge simple battery as a misdemeanor offense. Simple battery is defined as the intentional and wrongful physical contact with a person without his or her consent. There are no aggravating circumstances outside of the battery itself.
While simple battery is typically punishable by up to one year in jail, an aggravated battery conviction can lead to a prison sentence of five years or more.
Is battery a felony?
A prosecutor can charge aggravated battery as a felony. A defendant is guilty of the crime if the following are true beyond a reasonable doubt:
- the defendant committed a battery, and
- the commission of the crime was accompanied by certain circumstances of aggravation.1
Circumstances of aggravation may include that the defendant:
- inflicted serious bodily injury on the victim in the commission of the battery,
- used a deadly weapon in committing the crime,
- committed the battery in a domestic violence situation or committed a sexual battery,
- committed a battery against a police officer or law enforcement agent,
- was much older or stronger than the alleged victim,
- caused the victim to suffer permanent disfigurement,
- committed the battery with an intent to severely injure the victim, and/or
- had a criminal history with multiple past battery convictions.2
The crime of aggravated battery is typically charged as a felony (for example, felony battery) in most jurisdictions in the United States.
Many states divide a felony charge into first-degree battery and second-degree battery.
The offense is punishable by up to five years in prison, or even more depending on the facts of the case.
Is simple battery a felony?
No. Most jurisdictions say that simple battery is a misdemeanor offense.
A prosecutor must prove the following to convict a defendant of misdemeanor battery successfully:
- the defendant intentionally and wrongfully made physical contact with another person, and
- the defendant did so without that person’s consent.3
The key to the crime is that the accused touched or made some form of contact with the victim in an offensive manner.4
The following are examples of situations where battery charges may be filed:
- a woman pushes a man out of her way in a department store,
- a man throws a rock at another man and it hits him in the back, and
- a waitress spits on a restaurant patron who has been treating her disrespectfully.
Jurisdictions charge simple battery as a misdemeanor offense. The crime is typically punishable by:
- jail time of up to one year, or
- misdemeanor probation.
Is assault the same as battery?
No. Assault and battery are two related but distinct crimes.
A prosecutor must prove the following to convict a defendant of assault successfully:
- the accused willfully made an attempt or threat to inflict injury on another person, and
- he/she did so with an apparent ability to carry out that attempt or threat.5
Given the above, the main difference between assault and battery is that:
- assault is an action that may inflict physical harm or unwanted touching on someone else, and
- battery is the actual infliction of force or violence on someone else.
Note that, like battery, some states break assault down into different degrees or charge it as either simple assault or aggravated assault.
The crime is typically charged as a misdemeanor and is punishable by up to six months in jail.
No matter if a person is charged with assault or battery, the accused must contact a skilled criminal defense attorney or a criminal defense lawyer for help. Potential defenses to these crimes do exist (for example, self-defense) and an experienced lawyer can help a defendant use one to challenge a charge.
Fractured bones qualify as “serious bodily injuries” in California.
What is the law in California?
California law recognizes both simple battery and aggravated battery.
Under Penal Code 242 PC, California law defines simple battery as “any willful and unlawful use of force or violence upon the person of another.”6
The offense can be charged even if the victim did not suffer an injury or any pain. All that is required is that the defendant touched the person in an offensive way.7
Most cases of simple battery in California are charged as misdemeanors. The penalties may include:
- imprisonment in county jail for up to six months, and/or
- a maximum fine of $2,000.8
Under Penal Code 243d PC, California law says a person commits aggravated battery by touching or striking another person in a harmful or offensive manner and thereby causing the person to suffer a serious injury.9
A “serious bodily injury” is defined as any serious impairment of someone’s physical condition. It is not necessary that the victim seek medical treatment for the injury.10
Physical injuries that are considered serious may include:
- loss of consciousness,
- concussions,
- bone fractures,
- protracted loss or impairment of a function of any body part or organ,
- wounds requiring extensive suturing, and
- serious disfigurement.11
Aggravated battery is a wobbler offense under California law. A wobbler is a serious offense that a prosecutor can charge as either a misdemeanor or a felony.
When an aggravated battery is charged as a misdemeanor, the potential penalties include:
- misdemeanor (or summary) probation,
- up to one year in county jail, and/or
- a fine of up to $1,000.12
For felony aggravated battery, the potential penalties are:
- felony (or formal) probation,
- custody in county jail for up to four years, and/or
- a fine of up to $10,000.13
Additional Resources
For more in-depth information, refer to these scholarly articles:
- Aggravated Battery – The Fist or Teeth as a Dangerous Weapon – Louisiana Law Review.
- Territorial Aggression – Expanding California’s Penal Code Regarding Assault and Battery of Code Enforcement Officers – McGeorge Law Review.
- What’s Reasonable: Self-Defense and Mistake in Criminal and Tort Law – Lewis & Clark Law Review.
- Defending Battered Women’s Self-Defense Claims – Oregon Law Review.
- Assault and Battery – Injury Sustained in Prize Fight – Consent as a Bar to Civil Liability – Vanderbilt Law Review.
Legal References
- Black’s Law Dictionary, Sixth Edition – “Battery.”
- See same.
- See same. See also Mason v. Cohn (1981) 438 N.Y.S.2d 462.
- See same.
- Black’s Law Dictionary, Sixth Edition – “Assault.” See also State v. Murphy 500 P.2d 1276 (1972).
- California Penal Code 242 PC.
- CALCRIM No. 960 – Simple Battery. Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Myers (1998) 61 Cal.App.4th 328.
- California Penal Code 243 PC.
- California Penal Code 243d PC.
- People v. Wade (2012) 204 Cal.App.4th 114.
- CALCRIM No. 925.
- California Penal Code 243d PC.
- See same.
