Is there a Difference Between Assault and Battery in San Diego?

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Assault and battery are common crimes yet many people do not understand the difference between the two.

Assault is charged when a person threatens or attempts, and has the ability, to injure someone illegally. For example, if a person threatens another with a knife or gun, it is considered ‘assault with a deadly weapon’. Battery, on the other hand, involves the actual use of force or violence on someone. For example, if you try to hit someone without success, it may be considered assault, even if there was no physical contact. However, if you managed to really hit the person, you could be charged with assaulting your victim and battering him/her.

Remember that battery can be charged even when the act of potentially harming someone else wasn’t even a directly violent act. For example, a woman being charged with battery for spitting in a police officer’s food.

Penalty for Assault and Battery

Simple assault is considered a misdemeanor and can be punished with up to 6 months in jail. That being said, there are a number of ways assault can be a much more serious charge, for example, if the victim is a police officer, firefighter, paramedic or other protected class, the crime can be punishable by up to one year. Assault with a deadly weapon can be charged as a misdemeanor or felony and can be punishable by up to four years in prison as a felony.

Battery can be charged as a misdemeanor or felony depending on the severity of the victim’s injuries. For a misdemeanor, the maximum penalty is 6 months in jail. Aggravated battery can result in up to four years in prison. If the battery causes serious injury or if a deadly weapon was used, it is considered a strike and up to 3 years may get added to a prison term and even reduce early release prison credits.

Since the decision of how to file these charges lies with the District Attorney, to a large extent, your attorney may be able to get the charges minimized.

In these cases, the police often act based on the witness’s testimonial. That means you may be charged with battery even when you did not actually make physical contact with anyone or assault even when the other party is the one who made the threats.

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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