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San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

San Diego Assault & Battery Lawyer

Assault vs. Battery

The main distinction between the two offenses is that a battery requires physical contact, whereas no physical contact is necessary for an assault. In California a person can be charged and convicted of assault even if the alleged victim was not harmed during the incident. However, for a person to be charged and convicted of a battery in California, physical contact must take place. In effect, threatening a person with the intentional application of force is an attempt to commit a battery. An assault is considered complete when the intentional application of force is successful and a battery is committed. 

General Intent

General intent is the intent to do an act that is prohibited by law. For general intent crimes, the defendant’s intent to cause the result does not matter. The only intent that the prosecution needs to prove for a conviction is the defendant’s intent to commit the act.

Example of Simple Battery: To be guilty of a completed assault a defendant does not need to have intended to touch another person in a harmful or offensive manner. The only requirement is that the defendant intended to perform the motion that resulted in a battery.

Specific Intent

On the other hand, specific intent is the intent to both, commit an act and to cause a particular result. For specific intent crimes, the prosecution needs to prove that the defendant intentionally committed an act and intended to cause a particular result when committing that act

Example of Simple Assault: To be guilty of an attempted battery a defendant needs to intentionally cause harmful contact with another person with the intent of producing apprehension of harm in that person.

Assault

Under California Penal Code section 240, assault is the willful application of force, coupled with the present ability to carry out a threat of harm, injury or commit a violent injury against another person. 

Willful: 

To act willingly; to do something on purpose.

Application of Force: 

Any harmful or offensive touching of another person. Touching can be indirect by causing contact with an object or through another person.

Present Ability to Harm: 

To be aware that under the circumstances, the present ability to apply force would likely cause harm to another person. Actual intent to use force against that person is not required. 

Another Person: 

The person’s body, clothing or something attached to their person.

Defendant Did Not Act in Self-Defense:

The burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense. 

Assault: Prosecution's Burden of Proof 

In order to be convicted of Assault under California PC 240, the prosecution must prove each of the following elements:

  1. The defendant acted willfully;
  2. The defendant committed an act that resulted or would have resulted in force being used against another person;
  3. The defendant had knowledge of information that would cause a reasonable person to assume that what they were doing would result in force being used on another person;
  4. The defendant was aware that when the action was taken, had the ability to exert force on the other person;
  5. The defendant did not act in self-defense.

Penalties for Misdemeanor Assault  

In California, Penal Code 240 is a misdemeanor simple assault.

If you are found guilty of this charge you can:

  • Be sentenced up to 6 months in the county jail;
  • Receive a fine of up to $1,000;
  • Summary probation. 

Battery

Under California Penal Code 242, battery is defined as the intentional harmful or offensive touching of another person without their consent. In effect, the act of threatening a person with the intentional application force is an attempt to commit a battery.

Intentional: 

Intend to perform the motion that caused the battery.  

Harmful or Offensive: 

The touching of another person in a violent, rude, aggressive, angry, or disrespectful manner.

Touching: 

The slightest contact, touching or use of force. Physical contact can be indirect by causing an object or another person to touch the person.

Of Another: 

The person’s body, clothing or something attached to their person.

Without Consent: 

The person did not consent to the touching.

Defendant Did Not Act in Self-Defense:

The burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense. 

Battery: Prosecution's Burden of Proof 

In order to be convicted of Battery under California PC 242, the prosecution must prove each of the following elements:

  1. The defendant intended to make physical contact with the person of another;
  2. The touching was harmful or offensive;
  3. The person did not consent to the touching;
  4. The defendant did not act in self-defense.

Penalties for Misdemeanor Battery 

In California, Penal Code 242 is a misdemeanor simple battery.

If you are found guilty of the charge you can:

  • Be sentenced up to 6 months in the county jail;
  • Receive a fine of up to $2,000;
  • Summary probation;
  • Be required to successfully complete a batterer’s class.

Not Guilty

Because of the severity of the penalties involved with either assault or battery charges, your criminal defense attorney will have to determine which legal defense theory will work best in your particular situation.

Here is a list of the most common defenses:

  • It was an accident.
  • You were falsely accused.
  • You were acting in self-defense or were protecting another person.  

To assert this defense, you must have had a reasonable belief that you or the person you were protecting were likely to be physically harmed. The threat of harm must be imminent. A future threat of harm regardless of how severe or likely to happen will not be valid for a self-defense claim.  Also your use of force must be proportionate to the threatened force in order for your actions in self-defense to be justified. This means that the force you used to fight off the attack could not have exceeded the force used by the attacker.

Aggravating Factors

In California, assault or battery is subject to sentence enhancement if:

  • Committed against a victim in a protected class.
  • Using a weapon or force capable of producing great bodily injury or death.
  • The victim was seriously injured.
  • The offense was sexual in nature.

Under these specific circumstances, the court is allowed to add extra time to the sentence for the underlying crime.

Mitigating Factors

In California, the following are examples of mitigating factors that may reduce your culpability in an assault or battery case.

  • You are a first time offender.
  • You, yourself are a victim.
  • You lacked the ability to cause harm or inflict force.

Under these specific circumstances, the court is allowed to order less severe penalties.

Best Defense

If you find yourself in a situation where you could be charged with either an assault or a battery crime, make sure to contact San Diego criminal defense attorney Vik Monder to defend you. It is important to know and exercise your rights once you have been accused of a crime. A conviction for any of these crimes will have detrimental consequences that can last for the rest of your life. You do not have to face these charges alone; we can help you launch the strong criminal defense you need to avoid these consequences.

Contact San Diego Assault and Battery Attorney Vik Monder for a FREE consultation today at: 619-405-0063

Q: Can I be charged with assault and battery?

A: No, assault is separate offense from battery. Each offense has its own distinct elements that the prosecution must prove beyond a reasonable doubt to reach a conviction. The reason people think of them as a single offense is because they tend to be charged together. The best way to think about these two offenses is to look at their relation to each other. An assault is an attempted battery. This means that your actions may inflict unwanted touching of another but actual physical contact is not required for an assault. Accordingly, battery would be considered a completed assault because it involves the actual infliction of force on another person.

Q: What is the difference between an assault and a battery?

A: An assault is an attempt to use force on another person. It requires an overt act which by its nature would likely and directly result in the application of physical force on another person. While battery is the actual infliction of force on another person.

Q: What are the elements for assault?

A: Assault under California Penal Code section 240 is the:

  • willful
  • application of force
  • against another person
  • coupled with the present ability to carry out a threat of harm
  • not acting in self-defense

Q: What is not considered an assault?

A: Verbal threats of imminent harm alone will not be considered an assault. An assault requires words to be followed with actions that put the reasonable person in fear of imminent harm.

Q: What must the prosecution prove for assault?

A: The prosecution has the burden of proving beyond a reasonable doubt that you willfully did something that was likely to result in the use of force against another person. That at the time of your actions, you had the ability to apply physical contact and were aware of facts that would lead the reasonable person to believe that your actions would likely and directly result in physical contact with that person.

Q: What is the general intent required for assault?

A: Unlike specific intent offenses, the general intent required for assault is that you intended the attempt to use force on another person.

Q: What penalties am I looking at if convicted of simple assault?

A: Simple assault is a misdemeanor offense in California and can result in a fine of up to $1,000 and/ or up to six months in county jail.

Q: Will I lose my right bear firearms if convicted of assault?

A: Yes, if you are convicted of a misdemeanor assault you are no longer going to be allowed to own, have in your possession, under your custody or control any firearm for 10 years from the date of your conviction pursuant to California Penal Code section 29805.

Q: What are the defenses for assault?

A: If you are being charged with assault you cannot be convicted if you lacked the general intent, you did not have the ability to inflict force, or you were acting self-defense or in defense of another person.

Q: When does an assault become a battery?

A: An assault is a threat to use force on another person. An assault becomes a battery the moment that physical contact with the other person occurs in a harmful or offensive manner.

Q: What are the elements for battery?

A: Battery under California Penal Code section 242 is the:

  • intentional
  • harmful or offensive touching
  • of another person
  • without their consent
  • not acting in self-defense

Q: Does simple battery require that the victim be injured?

A: No simple battery does not require physical injury. The alleged victim only needs for offensive contact to have occurred to press charges for battery.

Q: What must the prosecution prove for battery?

A: The prosecution has the burden of proving beyond a reasonable doubt that you intentionally applied force to another person in a way that was harmful or offensive. That at the time of your actions, you acted without that person’s consent.

Q: What is the general intent required for battery?

A: Unlike specific intent offenses, the general intent required for battery is that you intended to physically contact or cause physical contact with another person.

Q: What penalties am I looking at if convicted of simple battery?

A: Simple battery is a misdemeanor offense in California and can result in a fine of up to $2,000 and/ or up to six months in county jail.

Q: Will I lose my right bear firearms if convicted of simple battery?

A: Yes, pursuant to California Penal Code section 29805, if you are convicted of a misdemeanor battery you are not allowed to own, have in your possession, under your custody or control any firearm for 10 years from the date of your conviction.

Q: What is the difference between simple battery and felony battery?

A: In California the difference between simple battery and felony battery is the identity of the alleged victim in your case and the existence of an injury. Simple battery is a misdemeanor and consists of the intentional offensive touching of another without their consent and not acting in self-defense. Whereas battery on a peace officer is a wobbler offense and can be charged as a felony if the intentional offensive touching of certain public servants without their consent, not acting in self-defense, results in the injury of the public servant. These public servants can be law enforcement, firefighters, or EMTs.

Q: What penalties am I looking at if convicted of felony battery?

A: Battery on a peace officer is a felony offense in California and can result in one year and four months, two years, or three years in state prison and up to one year of formal probation.

Q: What are the defenses for battery?

A: If you are being charged with battery you cannot be convicted if you lacked the general intent, you did not have the ability to inflict force, or you were acting self-defense or in defense of another person.

Q: What if I was acting in self-defense?

A: If you are being charged with battery and you were acting in self-defense, you cannot be convicted in California. Your legal defense is that you only committed the unlawful touching of another in order to protect yourself. A successful self-defense claim requires that at the time of the offense, you reasonably believed that you were in imminent danger and needed to use force to prevent that danger from happening. However, your use of force in a self-defense claim is limited to the necessary amount of force needed to prevent the danger from occurring. This means that if in defending yourself you exceeded this amount of force, you will not be protected by a self-defense claim.

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063

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