Battery Charge in California

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You might think that the legal terms “assault” and “battery” mean the same thing. Although they are often used together, they are separate crimes under California law.

You can face jail time even for a first-time assault and battery charge in California. Therefore, you should talk with our experienced assault and battery defense lawyers from the Law Offices of Kerry L. Armstrong, APLC, to get the best outcome possible for your case. 

What Is a Battery Charge in California?

California Penal Code §242 declares that battery is the willful and unlawful use of force or violence against another person.

The prosecution has to prove that the accused willfully touched another in either a harmful or offensive manner.

Even the slightest touch, if committed in a rude, angry, or offensive manner, could meet the definition of battery. This type of touching does not have to cause physical harm. 

The most familiar form of battery would be slapping, punching, or kicking the victim. However, you do not have to actually touch the body of the other person to commit a battery.

For example, slapping the tray out of a waiter’s hands is a battery even though you did not touch the victim’s body.

Other types of battery include sexual battery, aggravated battery, and domestic battery. Batteries can be charged as misdemeanors or felonies depending on a variety of circumstances.

Penalties for a Battery Charge in California

A first-time assault and battery charge in California carries a six-month jail sentence and a fine of up to $2,000.

The possible penalties you face include up to a year in jail if the victim of the battery is a member of a protected class like a police officer, firefighter, doctor, nurse, ambulance personnel, military service member on duty, and a custodial officer.

These charges typically remain misdemeanors, but you could face more serious felony charges for sexual battery, battery causing great bodily harm, or battery using a deadly weapon or firearm.

Felony battery charges are punishable by substantial prison sentences. The crime of domestic assault and battery also falls under the general battery statute.

In addition to an incarcerated sentence, the judge could order you to pay up to $5,000 to a domestic violence shelter instead of imposing a fine.

First-Time Battery Charges

Simple battery charges are misdemeanors in California. If there are no aggravating factors like a serious bodily injury, then you will likely get probation.

You may have to complete community service or attend anger management classes as part of your probation. Additionally, you may be responsible for paying restitution to the victim for injuries you inflicted.

However, probation is not guaranteed—you could go to jail after a conviction, even for a first offense. That’s why it is critical to get an experienced defense lawyer involved in your case right away.

You might wonder why you face battery charges if you and the alleged victim were in a fight. California law calls a fight “mutual combat.”

Both of you could face charges for striking each other, especially if others witnessed the altercation and tell the police that both of you were at fault.

Mutual combat can turn ugly. Many people sustain serious bodily injuries—especially head injuries—or even die from mutual combat.

So keep in mind that a fight that results in the death of your opponent might mean that you face manslaughter or even a murder charge, even if you have no criminal history.

What Is an Assault in California?

California Penal Code §240 defines an assault as an attempt to inflict violent physical injury on another. The assailant must have the present ability to cause violent physical injury for an assault to occur.

Notice that—unlike a battery—no actual contact with the victim is necessary. If harmful or offensive touching actually occurs, it’s no longer an assault; rather, it is a battery

Section 915 of the California jury instructions clarify the definition of assault in California.

According to the jury instruction, the prosecution has to prove that the accused:

  • Committed an act that would probably result in the application of force to the victim;
  • Committed the act willfully;
  • Knew or should have known at the time of the act that a reasonable person would realize the act could result in the application of force; and
  • Had the present ability to apply force to the victim.

In California, application of force or applying force means to touch another person in either a harmful or offensive way.

Common Examples of Assault

One example of an assault is throwing a punch at someone and missing. Another example of an assault is when a person balls up their fist as if to throw a punch, thereby putting the other person in fear of getting hit.

The aggressor commits an assault even if no punch is thrown.

California law also recognizes an assault as a “conditional threat to use force.” An assault as a conditional threat occurs when the assailant threatens to use force or violence to compel the victim to act as the accused wishes.

As with simple assault, the accused must have the present ability to carry out the threat.

Punishment for Assault

Simple assault is a misdemeanor that carries a possible six-month jail sentence and a fine of no more than $1,000.

However, like battery, the jail sentence can increase to one year, and the fine could increase to $2,000 if the accused commits an assault on certain protected people while performing their professional duties.

Penalties can also increase if the assault happens in certain places—like on school grounds or public transportation, for example.

Assault with a deadly weapon, assault using a firearm, or an assault that is likely to cause great bodily harm are serious felonies that could lead to a prison sentence of up to four years.

Who Should You Call if You Have Battery Charges in California?

Contact the Law Offices of Kerry L. Armstrong, APLC, online or at 619-737-1973 right away if you get charged with assault or battery.

We have the expertise you need, and we’ve worked hard to earn the trust of our community.  Mr. Armstrong is a specialist in criminal law as recognized by the State Bar of California’s Board of Legal Specialization.

We are also proud that news media outlets frequently ask us for our legal analysis and opinions. That’s why we have appeared well over 100 times on various media outlets around the United States.

Beyond that, our award-winning criminal defense lawyers constantly exceed our clients’ expectations. Why? Because we care about you, your rights, your freedom, and your way of life.

Call us today to schedule a free and confidential initial appointment.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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