Though people use the words "assault" and "battery" interchangeably, they have different meanings. The crime of battery consists of any unlawful or willful use of violence/force on someone. On the other hand, assault is unwanted touching or an action known to inflict harm on a person. The LA Criminal Defense Law Firm defends people who have been accused or charged with assault or battery crimes across the Los Angeles area.

What is Assault and Battery Under California’s Laws?

Assault, under Penal Code 240, is synonymous with simple assault, which is an attempt to inflict violent injury on a person. A criminal charge for simple assault attracts misdemeanor penalties. The following conditions must be true for you to face a conviction for assault:

  • You (the defendant) acted in a way that could lead to the use of violence/force against a person
  • Your actions were willful
  • You knew that your actions would probably lead to force or violence inflicted to someone else
  • You could inflict force to the victim when you acted

Battery, in the legal realm, is a crime of touching someone else, willfully and in an offensive or harmful manner. The elements of this crime include "touching," "willfully," and "offensive/harmful manner." A California prosecutor must prove all of these elements beyond a reasonable doubt when alleging you committed battery. Criminal proceedings for a crime of battery must follow the guidelines highlighted under Penal Code 242.

Elements of the Crime of Assault

If your actions would result in the application of force, you may face assault charges. Use of force, in this context, is any offensive/harmful touching. Even the slightest touching counts as the application of force if you do it offensively or rudely. An incident involving assault may occur if the touching did not lead to any injury.

The prosecutor might allege your actions were willful if you acted on purpose. Acting willfully will not necessarily mean that you want to break the law, hurt someone, or gain any form of advantage. If you assaulted a person on purpose, you may be a suspect in an assault case.

You may face assault charges for being aware that your actions would result in the application of force. Though you may not have wanted to use force, you will face the charges for knowing the possible outcomes of your actions. The logic here is that an average person would not consider attempting to apply force on someone else if he/she is aware of the harm the application of force would cause.

Elements of the Crime of Battery

When accused of touching someone else, it means you made physical contact with the person. You may be a suspect in a battery crime even if you did not cause any harm or injury to the person. Battery still occurs when the touching takes place indirectly (by the use of an object) or through the victim’s clothes. Offensively touching an item intimately connected to the victim’s body also qualifies as battery.

Acting willfully may mean that you acted on purpose or you did not intend to hurt someone, break the law, or gain any advantage. The intent is not part of the elements of a crime of battery. The prosecutor will not consider your motives when arguing your case in court.

An act of touching would qualify as battery if you did it in an offensive or harmful manner. In this case, your actions may be rude, violent, disrespectful, or angry. If you project an unwanted touching to someone else, the act will only qualify as battery if it was offensive or harmful.

Differences Between the Crime of Assault and the Crime of Battery

California's criminal laws consider assault and battery as two different offenses. Under Penal Code 240, assault is an action with the potential of inflicting physical harm. You may also define assault as a form of unwanted touching on a person. Battery, under Penal Code 242, is the actual application of violence or force on an individual.

Battery involves actual physical contact, while assault does not involve any physical contact. You may consider assault as an attempted battery while battery as a completed assault. The proceedings and penalties for both offenses are different.

The California Criminal Court Process for Assault and Battery Crimes

Since simple assault and simple battery qualify as misdemeanors, their criminal process involves various stages. Following your arrest, your case will go through arraignment, bail hearing, a pretrial phase, trial and appeal (if you request one). The prosecution may decide to drop your case at any stage if there is weak evidence or a court grants you the motion to suppress evidence.


A police officer may arrest you immediately after receiving a call that you committed assault or battery against someone else. The arrest may take some time if the officers are still finding evidence to link you to the assault or battery crime. Either way, a law enforcement officer will book you at the station following the arrest.


Arraignment is the first stage in a criminal court process that may involve the issuance of bail, entering a plea or setting a future court date. During this stage, a California court will read your Constitutional rights to you and inform you about the specific criminal charges filed against you. The court will allow you to enter a plea and set, reinstate, exonerate, or modify your bail.

Your arraignment hearing will occur after the prosecuting agency completes filing formal charges against you. The prosecuting agency, in this context, may be the office of the City Attorney or office of the District Attorney. Arraignment hearings in California strictly take place under the state laws.

You may ask your attorney to appear on your behalf at the arraignment hearing. Remember to carry a copy of the police report about your case and a copy of the formal complaint filed against you to the hearing. You may choose to enter or not enter a plea depending on your lawyer's advice and your circumstances.

Bail Hearing

During the bail hearing, the court will decide whether to have you released from jail as you are awaiting trial. The court may release you on your own recognizance or require you to post bail. It is also possible for the court to deny you bail or release you under conditions separate from bail payment. An own recognizance release allows you to get out of jail without paying bail based on your promise to show up in court.

A judge will set your bail depending on the crime you committed. All counties in California have their unique bail schedules. Since posting a high bail amount may strain your finances, requesting a bail hearing can help ease this burden.


Your case will proceed to the pretrial phase once you enter a “not guilty” plea. The pretrial phase may involve negotiations, plea bargains, discovery issues, and filing of motions. Depending on your lawyer's defense strategy, it may be possible to drop the case at this phase.


You can exercise your right to a jury trial by requesting one. If you maintain a "not guilty" plea during the pretrial proceedings, your assault/battery case will ultimately proceed to trial. A jury trial will feature twelve vetted members representing a cross-section of the community in which the crime occurred. The jurors will give their verdict while the judge will issue the sentencing (if convicted of either assault or battery).


An appeal may help you challenge the rulings of a judge and the unethical acts of prosecutors. The appeal will offer a limited review (by a higher court) of your criminal conviction. Appellate courts do not accept new pieces of evidence, retry cases, or hear witness testimonies.

Penalties for Assault and Battery

A crime of assault qualifies as a misdemeanor in California. The potential misdemeanor penalties include misdemeanor/summary probation, jail sentence not exceeding six months and a fine not exceeding $1,000. A court may impose both jail time and fines on your case or impose one of these penalties on you following a conviction for assault.

If you committed the crime of assault against a protected person, you risk facing a one-year jail sentence. Your fines will also increase to $2,000 if you were aware of the victim’s “protected” status. The list of protected individuals includes the following:

  • Custodial officers or employees of probation departments
  • Peace/police officers (or law enforcement officers)
  • Firefighters
  • Custodial assistants, traffic officers or process servers
  • Lifeguards or search and rescue members
  • Emergency medical technicians or paramedics
  • Doctors/nurse administering emergency medical care

Penal Code 242 of the California criminal laws considers simple battery as a form of battery that does not lead to serious injury. You may face simple battery charges for committing battery against an individual who is not a law enforcement officer or protected in any way. The potential penalties for simple battery include summary/misdemeanor probation and spending up to six months locked up in county jail. You may pay a fine not going beyond $2,000.

Does a Criminal Charge for Assault or Battery Give You a Criminal Record?

A misdemeanor assault or battery charge may give you a criminal record when you plead guilty or plead "no contest." You will also have a criminal record after receiving a guilty verdict for assault/battery at trial. The conviction stays on your criminal record until you decide to expunge or seal it.

Is it a Must to Disclose Your Assault or Battery Arrest/Conviction on a Job Application?

California Code of Regulations prohibits private employers from asking job applicants about their arrests and convictions. You have the right not to disclose information regarding an arrest that did not lead to a conviction to your potential employer. Sealing your arrest record and expunging your conviction may prevent the employer from knowing about these details.

Can You Expunge Assault and Battery from Your Criminal Record?

An expungement helps release you from the penalties and disabilities of a criminal conviction. You can expunge your assault/battery conviction after completing probation for the particular offense. Your potential employers will not know about your expunged conviction. You may be ineligible for this relief if the following conditions are true:

  • You are currently serving a jail/prison sentence for a crime
  • Your criminal case is pending in court
  • You are on probation for committing a crime

Is it Possible to Seal an Arrest Record for Assault and Battery Charges?

Once you have your arrest record sealed, the record will not show up in criminal background checks. Law enforcement officers may still have access to your arrest record. Senate Bill 393, which is part of Penal Code 851.87, first introduced inhabitants of California to this relief. You can only seal an arrest record if the court vacated your conviction or the prosecution dismissed your charges after filing them. If a court links your assault or battery charge to crimes such as domestic violence, elder abuse, or child abuse, it may be difficult to seal your arrest record.

You can seal juvenile adjudications and arrests to make them inaccessible to your potential employers. Your juvenile records (if you have any) will not be automatically sealed once you are 18 years of age. You can have them sealed if you did not face any misdemeanor or felony convictions for assault or battery. The assault or battery charges should not be related to serious offenses such as robbery, torture, and murder for you to seal your juvenile records.

Can Assault and Battery Charges Lead to Deportation?

Assault and battery charges may only lead to deportation if they involve domestic violence, firearms, and drugs. The U.S immigration law suggests that non-citizens risk facing deportation within their five-year stay in the country if they commit a crime of moral turpitude. Non-citizens are also subject to removal/deportation proceedings if they commit a crime carrying a sentence of one year or more.

Legal Defenses for Assault and Battery Criminal Charges

A proven means of fighting assault and battery charges is with the assistance of a competent criminal defense attorney. Your lawyer will know how to formulate and use various legal defenses in your favor. The legal defenses for beating these charges include:

You Did not Act on Purpose

One of the criminal elements of battery revolves around acting willfully. So if the alleged battery incident was an accident, you may base your legal defense on the accident. For instance, you may hit someone in a crowded area with an object you were carrying. If the person files criminal charges, you may defend yourself saying the incident was a complete accident.

Arguing that the victim misinterpreted your actions can help your case. It would help if you shared the full story of the assault/battery incident with your lawyer. Your lawyer can use your version of the story supported with evidence and witnesses to fight your assault/battery charges.

You Were Incapable of Inflicting Force/Violence

One of the elements of an assault crime is that you (the defendant) must have the ability to apply force on someone else. You may not be guilty of the assault charges if you were incapable of using force/violence on the victim. Your lawyer can argue that you were far away from the victim, making it impossible for this crime to happen.

False Accusations

When facing assault charges, there might be a possibility of the victim falsely accusing you out of jealousy, desire for revenge or anger. Since there is no requirement for bodily injury, the prosecution may rely on the victim’s version of the incident. Your criminal defense attorney should know how to collect evidence and approach/interview witnesses for the actual version of the incident to come out.

Self Defense

Self-defense, as a legal defense, may apply in your case if you reasonably believed there was imminent danger. The battery incident may involve you trying to defend yourself or someone else against a threat. A California court will consider this legal defense if you did not use much force to protect yourself or others. Your immediate use of force must have been reasonable to defend you or others from getting hurt.

Acting Within Your Parental Rights Towards a Child

Though you may have the parental rights to discipline your child, overstepping these rights may attract criminal prosecution. You may use physical force when disciplining your child provided the force is not excessive and reasonable under the circumstances. If your battery case involved your child, you may use this legal defense to fight the charges.

Mistaken Identity

Mistaken identification on the side of the eyewitnesses may lead to a wrongful conviction for assault or battery. A scenario like this may happen if the victim assumes you are responsible for causing the criminal act or your physical description resembles that of the actual perpetrator. Someone else may also be pointing the finger at you as a way of covering their criminal liability. Either way, your lawyer can support this legal defense with evidence and actual witnesses to fight your assault/battery charges.

You Have an Alibi

If your version of the story checks out based on the alibi you provided the law enforcement officers, you may not face criminal charges for assault/battery. In your defense, you can say you were somewhere else at the time the assault/battery crime occurred. Law enforcement officers will rely on evidence such as credit card receipts, surveillance tapes, and witnesses to corroborate your alibi.

Related Offenses

The crimes of assault and battery have many elements in common with other offenses listed in California's criminal laws. Sexual battery, elderly abuse, domestic battery, and battery on a peace officer share some characteristics with the crime of simple battery. Offenses related to assault and battery are as follows:

Battery on a Peace Officer

Penal Codes 243 (b) and 243(c)(2) highlight the various penalties associated with battery committed against protected persons. The prosecution has to prove you reasonably knew the victim’s occupation when committing battery against them. Battery on a protected person is an offense punishable with a felony jail sentence spanning from 16 months to two years.

Battery Resulting in Serious Bodily Injury

Battery leading to severe bodily injury attracts harsher penalties than simple battery as highlighted under Penal Code 242(d). Also referred to as aggravated battery, this crime may result in severe impairment of a person's physical condition. Concussions or broken bones are some of the examples of severe bodily injury. A misdemeanor aggravated battery is punishable with a jail sentence of up to one year while a felony one attracts two to four years in prison.

Domestic Battery

Domestic battery is a form of battery committed against various categories of people. The victims may include the father/mother of your child, a former/current lover, and your current/former fiance. Others may include your former/current cohabitant and your former/current spouse. Domestic battery is a misdemeanor carrying a maximum jail sentence of one year or fines not exceeding $2,000.

Assault with a Deadly Weapon

Penal Code 245(a)(1) defines assault with a deadly weapon as a crime committed using means of force or weapons likely to lead to great bodily injury. You may face misdemeanor or felony charges for allegedly committing this crime. If convicted, felony charges will attract a two to four-year jail sentence while misdemeanor charges will attract a one-year jail sentence.

Disturbing the Peace

The crime of disturbing the peace may involve fighting and directing provocative words to someone in public. Making unreasonable noises to disturb others may also count as disturbing the peace under Penal Code 415. The penalties for this low-level misdemeanor include a jail sentence of 90 days. A court may also treat this criminal charge as an infraction.

Find Legal Help from an Experienced Criminal Defense Firm Near Me

Besides attracting hefty penalties, assault and battery charges may take a toll on your career, education, or social life. The LA Criminal Defense Law Firm has the legal needs of the Los Angeles community covered. Our lawyers handle assault, battery, DUI, and driving crimes, among other criminal cases. Give us a call at 310-935-1675 to discuss your case with us or seek advice on a legal issue.