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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, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. In 2014, 2015, 2016, 2017, 2018, and 2019 Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys. In 2017, he was also selected for the Super Lawyers Top 50 in San Diego list. In 2014, he was selected as a Top Attorney by Los Angeles Magazine. Additionally, Mr. Armstrong was also named as a Top Attorney by the San Diego Business Journal in 2014.

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