Heated arguments can quickly turn into physical confrontations. Even a simple act of anger like knocking a paper file off your friend’s hands can lead to criminal charges for a violent crime. Sometimes, everything happens quickly, and the split-second between an anger trigger and your reaction can leave you in handcuffs by the end of the day. If the police arrest you for assault or battery, we can help you build the most robust defense possible. At San Diego Criminal Defense Lawyer, we will outline your legal options in a language you understand. Let us protect your rights and help ensure you obtain the most favorable outcome.

Assault and battery are two different offenses. Both are violent crimes, and prosecutors will always seek the maximum penalty. A conviction can result in imprisonment, hefty fines, a permanent criminal record, mandatory anger management programs, and the loss of your driving privileges and gun rights, among other penalties. With so much at stake, you owe yourself the favor of having the backing of a dedicated criminal defense team.

Assault And Battery, What Is The Difference?

Penal Code 240 describes the crime of assault as the act of attempting to cause apprehension or fear of imminent physical harm. On the other hand, as defined under Penal Code 242, battery is the actual use of force or violence against another person.

Assault, compared to battery, is a lesser crime and is typically charged as a misdemeanor. The latter is a wobbler offense charged as a misdemeanor or a felony, depending on the facts of a case.

It remains imperative to understand that both crimes have varying degrees of severity, often measured by the extent of the injury suffered by a victim.

Here are the various degrees of assault and battery:

Simple Assault

Assault is an unlawful attempt, combined with the present ability to harm another person. Even if you “attempt” to take a swing at your friend and miss, you are still guilty of assault as long as you have the “present ability” to commit the violent crime.

Simple assault is a misdemeanor that attracts the following punishment:

  • Jail time for up to 6 months
  • A fine not exceeding $1,000

Note that verbal threats alone do not constitute assault. Threats turn into assault when the defendant shows the intent to fulfill a threat.

Moreover, the identity of a victim plays a significant role in measuring the severity of an offense. While simple assault is typically a misdemeanor, it escalates into a wobbler offense if the victim is a protected group member like a peace officer, juror, paramedic, firefighter, etc.

Aggravated Assault

Aggravated assault is a wobbler offense that attracts misdemeanor or felony charges. Some of the crimes charged as aggravated assault include:

  • Penal Code 244, assault with caustic chemicals
  • Penal Code 245(a)(1), assault with a deadly weapon
  • Penal Code 245(a)(4), assault by means likely to cause great bodily injury
  • Penal Code 245(a)(2), assault with a firearm
  • Penal Code 241, assault on a peace or police officer

The punishment for aggravated assault when charged as a misdemeanor includes:

  • Up to 1-year imprisonment in county jail

A felony conviction attracts the following penalty:

  • Up to four years jail time in state prison
  • A fine not exceeding $10,000

Simple Battery

Penal Code 242 describes battery as the act of intentionally touching another person angrily or with the willful use of force or violence. Note that the offense is considered simple battery only when the contact or “touching” does not cause severe injury and is not committed against protected persons like a police officer.

Simple battery is a misdemeanor punishable by:

  • Incarceration in county jail for up to 6 months
  • A fine not exceeding $2,000

Even though simple battery is a misdemeanor, the offense attracts harsher punishment when committed against the following victims:

  • An intimate partner
  • An elderly or disabled person
  • A school employee on duty
  • Anyone on hospital grounds, school property, or in a public park

Aggravated Battery

Aggravated battery cases involve circumstances that make an offense more serious. The defendant’s actions either lead to great bodily harm or entail using a dangerous weapon. Also, you will face aggravated battery charges if the offense is committed against a protected person, like a healthcare provider, a firefighter on duty, or a police officer.

A conviction for misdemeanor aggravated battery includes:

  • Jail time for up to 1 year
  • A maximum fine of $1,000

A felony aggravated battery conviction attracts the following penalties:

  • Imprisonment for up to 4 years
  • Up to $10,000 fine

The Elements of Assault

Assault and battery are terms often used interchangeably. Before the prosecution can convict you of assault, they must establish the following elements beyond a shred of doubt:

  • You acted in a manner likely to cause the direct application of force against someone else
  • You acted willfully or deliberately with the intent to cause apprehension of harmful or offensive touch
  • You knew that your actions would make your victim believe they faced impending harm
  • You had the present ability to use force or violence against your victim

Let us have an in-depth look at some of the terms used in describing the elements of assault:

Application of Force

The phrase “application of force” refers to harmful or offensive touch. Even a slight touch counts as the application of force if you contact your victim rudely or offensively.

Note that assault is the act that causes a victim to fear imminent harm. Once you establish touch, the crime escalates into battery. This is irrespective of whether you cause actual physical injury or not.

A few examples of “application of force” in the context of assault include:

  • Attempting to spit on your victim
  • Brandishing a weapon in a fashion suggesting you will hit your victim
  • Pointing a loaded or unloaded gun at your victim
  • Miming the act of punching, hitting, or kicking your victim


Acting “willfully” is to do something intentionally or on purpose. Note that you are guilty of assault even if you did not intend to break the law. Moreover, you do not need to plan to harm the victim.

You merely need to be aware that your actions can lead to offensive touch (applying force). For instance, any reasonable person knows that pointing a gun at someone’s head causes apprehension of imminent danger. Generally, willful conduct implies acting with criminal or wrongful intentions.

Intent to Cause Apprehension

Apprehension implies the awareness of forthcoming injury or offensive contact. The circumstances around an incident dictate whether an action can create apprehension. For instance, waving your fist at your friend right after an argument can cause apprehension, unlike doing the same action while on good terms.

Present Ability to Use Force

Empty words do not constitute assault. For example, if your friend waves his hand and shouts, “I will shoot you dead!” This does not necessarily amount to an assault. If the pal in question has no gun, this makes his words nothing more than a threat. Essentially, the defendant lacks the present ability to carry out the threat and “shoot you dead.”

The Elements of Battery

Penal Code 242 describes battery as the actual use of force or violence. The elements of the crime are as follows:

  • You touched another person
  • Your actions were willful or deliberate
  • You touched your victim in an offensive or harmful manner

Here is a more comprehensive description of the key terms used in describing the elements of battery:

Touched Someone Else

As aforementioned, assault escalates into battery once you make physical contact. Note that the contact does not necessarily need to cause any injury or significant harm to the victim. Even a slight touch constitutes battery as long as it is offensive or harmful.

Also, it is crucial to understand that battery does not happen solely through direct touch. It can also occur by touching anything intimately connected to the victim, like their clothing or a book they are holding. Moreover, you are guilty of assault even if you touch your victim indirectly using an object.


The term “willfully” implies that any reasonable person under similar circumstances would know the consequences of performing a particular action. Again, you don't need to have the intent to break the law or hurt your victim.

A few examples of battery include:

  • Spitting on a victim
  • Punching, pinching, slapping, or kicking the victim
  • Throwing an object that hits the victim
  • Any other act that can cause cuts, burns, bullet wounds, or bruises

Harmful or Offensive Manner

Touching a victim in a harmful or offensive manner implies that the touch was:

  • Rude
  • Violent
  • Disrespectful

Again, the “harmful or offensive” touch does not need to be direct. For instance, you are guilty of battery if you whip the horse the victim is riding, and this action causes the plaintiff to fall.

Assault And Battery Civil Lawsuit

Apart from the criminal penalties you risk facing following an assault or battery conviction, the plaintiff also has the right to file a civil lawsuit. This is possible if an incident results in damages like lost wages, medical bills, or pain and suffering. In a civil court, the plaintiff merely needs to establish that you assaulted or battered them by a preponderance of the evidence.

It is essential to note that you don't need to be charged with the crime or convicted for a victim to file a civil lawsuit. The case is entirely different from a criminal lawsuit, and the court will view it with fresh eyes. However, a conviction drastically increases the odds of being found guilty in a civil court and paying for the damages incurred by the plaintiff.

Best Legal Defenses to Fight Assault And Battery Charges

The proper legal defenses against assault or battery charges depend on the facts and circumstances. Sometimes, your attorney must table evidence that adds strength and credibility to a defense strategy.

Here are some of the best defenses an attorney can use:


The most common defense for battery or assault charges is self-defense. For your lawyer to successfully argue that you were only defending yourself, someone else, or your property, the following must be true:

  • You faced the threat of the plaintiff using unlawful force or violence against you
  • Any reasonable person in your position would believe there was a real and honest threat of harm
  • There was no provocation or harm on your part before an incident
  • You did not have the option to escape or retreat from the situation
  • You only used the force necessary to neutralize the impending danger

The doctrine of self-defense does not come without limitations. For instance, you can still be convicted of assault or battery if you use too much force compared to the pose posed by a victim. Additionally, you cannot claim you acted in self-defense if the victim was no physical match for you based on the size, age, or present ability to cause harm.

You Had the Consent of the Plaintiff

Consent can be a defense to fight assault or battery charges depending on the relationship between a defendant and the plaintiff. However, it is also necessary that the alleged act does not exceed the permission provided. Because the courts scrutinize consent closely when used as a defense, your attorney needs to prove that you did not aim to cause harm or violate public policy with your actions.

Lack of Intent

Another defense that could come in handy is that you did not act willfully. Your attorney must demonstrate to the court that you lacked intent and therefore did not comprehend the foreseeable consequences of your actions. The court cannot find you guilty of assault or battery if your actions were purely accidental.

For example, you were walking down the stairs when you accidentally slipped and pushed the person in front of you. In this classic example, you had no way of comprehending the foreseeable consequences of ramming down the plaintiff because you did not plan to slide down the stairs in the first place. The incident was an accident whether the plaintiff suffered injuries or not. If anything, you can file a personal injury lawsuit against the building owner if a wet floor or construction defects caused the slip and fall.

Mistaken Identity

Another defense your lawyer can use depending on the facts of a case is mistaken identity. The defense will only be applicable if you can prove that you were elsewhere at the time of an incident or a plaintiff had no way of knowing that you committed assault or battery against them.

For example, you walk in your crowded school hallways when someone throws a crumpled paper ball at Jane. By the time she looks back, everyone has scattered, and the only person she sees is you looking directly at her. It could be that someone else threw the paper ball and disappeared into the scattered crowd to avoid detection. As guilty as you seem, you simply did not commit the offense.

Parental Right to Discipline Your Child

When the victim is your child, you can face battery coupled with child abuse charges under Penal Code 273(d). Your attorney can convince the court that you were within your rights to discipline your child. The force used must be reasonable for the defense to bear the intended fruit. Again, a judge is unlikely to drop the charges if the force used is excessive under the given circumstances.

Offenses Related To Assault And Battery

Other crimes closely related to assault and battery include:

Brandishing a Gun in a Rude or Threatening Manner, Penal Code 417

When you commit assault by waving a loaded or unloaded gun at your victim, the prosecution can also charge you with Penal Code 417. The statute makes it a crime to brandish a firearm rudely or angrily and encourages responsible weapon carrying. While the offense is a wobbler, it attracts felony charges if an incident results in another person's injuries.

A misdemeanor conviction for violating Penal Code 417 attracts the following penalty:

  • Prison time in county jail for up to 1 year

If the prosecutor imposes felony charges, your sentence will include:

  • Incarceration in state prison for up to 3 years

Assault with a Gun, Penal Code 245(a)(2)

Assault cases can tag along with gun crime penalties anytime a defendant uses a firearm to create apprehension. Under Penal Code 245, it is illegal to assault another person using a firearm (shotgun, rifle, pistol, semi-automatic gun, machine gun, etc.). You are guilty of assault with a firearm, whether you fire and miss or merely use the weapon to instill fear and not harm.

Like Penal Code 417, Penal Code 245 is a wobbler offense capable of attracting felony or misdemeanor charges.

If convicted of a misdemeanor, you can expect the following penalties:

  • 6 to 12 months imprisonment in county jail

A felony conviction is punishable by:

  • 2, 3, or 4 year’s jail time in state prison

Domestic Battery, Penal Code 243

When analyzing assault or battery cases, the prosecution will always consider the class of a victim. Intimate partners fall into a unique subset of people, meaning you will instead face penalties for domestic battery if you commit an offense against the following people:

  • Your current or former spouse
  • Your current or ex-cohabitant
  • Your fiancé or former fiancé
  • Someone you currently date or used to date
  • Anyone with whom you have a child
  • People you are related to by blood or by law

Violating Penal Code 243 is a misdemeanor punishable by:

  • A 1-year jail sentence
  • A fine not exceeding $2,000
  • Mandatory 1-year batterer’s treatment program

Sexual Battery (assault), Penal Code 243.4

Penal Code 243.4 prohibits sexual battery, sometimes referred to as sexual assault. The statute defines the offense as the act of touching an intimate partner or any other person without consent, against their will, and for sexual arousal, gratification, or abuse.

Sexual battery is a wobbler offense, although you can expect felony charges if your victim was:

  • Not informed about the nature of the act (for instance, the victim thought the touch was for medical purposes)
  • Unlawfully restrained
  • Institutionalized for a disability or mental debilitation
  • Forced to touch your intimate parts under any of the circumstances mentioned above

If convicted of a misdemeanor, the punishment will include:

  • Imprisonment in county jail for 1 to 12 months
  • Mandatory registration as a California sex offender

A felony conviction attracts the following penalty

  • A jail sentence in state prison of 2, 3, or 4 years
  • Mandatory sex offender registration requirement

Elder Abuse, Penal Code 368

When an assault or battery victim is 65 years or older, the prosecution can impose elder abuse charges alongside Penal Code 242. Penal Code 368 makes it unlawful to inflict any of the following abuse on a senior citizen:

  • Physical abuse (inflicting unjustifiable pain or injury),
  • Emotional abuse (subjecting the victim to ridicule or isolation)
  • Neglect & endangerment (putting the victim in harm’s way)

Elder abuse is a wobbler offense, and the facts of a case will help determine whether the prosecution should impose misdemeanor or felony charges.

When violating Penal Code 368 is charged as a misdemeanor, the punishment includes:

  • Up to 1-year imprisonment in county jail
  • A fine not exceeding $6,000

Felony elder abuse attracts the following penalties:

  • Up to 4 years’ incarceration in state prison
  • A $10,000 maximum fine

If the victim suffers great bodily harm, the judge will impose a sentence enhancement of up to 7 additional years in state prison.

Find a Criminal Defense Attorney Near Me

It is not uncommon for matters to go south within minutes following a heated argument. If you are battling assault or battery charges, you do not need to navigate the criminal justice system alone. We will stand by you and help you gather evidence that can have your charges reduced or dismissed. At San Diego Criminal Defense Lawyer, we have built a name from giving each case we handle maximum attention. Let evaluate your case and go through all the facts with a fine-tooth comb to find even the most minor details that can help us build a strong defense. Call us now at 619-695-1677 for a free consultation.