By: Diana Aizman
Battery refers to a harmful or offensive touching. To be charged and convicted of battery causing serious bodily injury under Penal Code Section 243(d),1 the injury that resulted from the contact has to be a serious one. In California, this is also referred to as aggravated battery.
The elements of the offense are basic:
The elements are examined in more detail below.
Element of Touching
To be convicted of aggravated battery, you need to have touched someone or made some kind of contact with them. It could be in the slightest manner by finger or hand or by using an object like a pole or handbag that is considered an extension of yourself.
Element of Intentional or Willful
If you unintentionally touched or made contact with someone, then no battery4 has occurred. This can happen on a crowded street or room packed with people so that it is difficult to pass people without at least brushing against them.
The contact has to be willful and with the intent to touch another person in a harmful or offensive manner. If you inadvertently came into contact with another person who then fell and broke her leg, there is no intent. If you merely brushed against the person who lost their balance and broke a leg or suffered a head injury, but the “brushing” or slight push was intentional, you could be charged with aggravated battery.
You also may not have intended to injure the other person at all. But if your intentional contact, however slight, did lead to a serious injury, then you may have committed this offense.
Element of Harmful or Offensive Manner
The contact made must have been harmful or offensive. Harmful contact can be a hard push or shove as well as a punch. To be offensive contact, the touching must have been unwanted and done in a manner that was:
If you were being playful or affectionate and pushed or hugged someone but caused an injury, you should not be found guilty of aggravated assault since your contact was not angry, violent or disrespectful.
It helps if the defendant and victim were friends or knew each other in a friendly manner and there was no angry or contentious event that preceded the contact.
Element of Serious Injury
A serious injury is defined in jury instruction CalCrim 925 as a “serious impairment of a physical condition” and includes but is not limited to:
- Loss of consciousness
- Fracture of a bone if it leads to serious impairment of a physical condition (walking or use of hand)
- Serious disfigurement
- Protracted loss or impairment of any function of a bodily member or organ
- A wound requiring extensive sutures
The injury need not require medical attention to be considered “serious.”5 This is a factual determination for the trier-of-fact to decide, whether it is a jury or a court trial where the judge decides your guilt or innocence.
The prosecution of a criminal offense requires that the prosecution prove each element of the crime by the standard of “beyond a reasonable doubt.” This does not mean all doubt but the proof must be such that if there is reasonable doubt about the defendant’s guilt, then the verdict should be an acquittal.
For example, if another person could reasonably have committed the crime or if there is a reasonable alternative where it is just as likely that the defendant might not have committed the offense or one of the elements of the crime, then there is reasonable doubt.
In proving each element of Penal Code 243(d), the prosecutor should provide evidence in the form of eyewitness testimony that the defendant touched or made contact with someone in an offensive manner. The prosecutor will also likely need to offer medical evidence from doctors or medical reports that the injury was serious as defined by the law.
There is testimony from the victim and possibly a neutral witness who observed the defendant making contact with the victim.
Contact was intentional
The victim or third party witness can describe the contact as a hard push or shove if not a punch. The contact could also be from a knife, firearm or other object that was wielded by the defendant in a threatening manner.
The defendant could also be described as looking straight at the victim before the contact was made or that he/she made a comment such as “I’m going to get you for that.’ The defendant might have been appeared focused on the victim and walked directly to him before contact was made.
Harmful or offensive manner
The contact must have been in a rude, vicious, violent or disrespectful manner. A witness could describe the defendant as being angry or shouting just before the contact was made or was laughing in a mocking way before violently brushing against the victim.
Again, this is a factual determination that in similar cases could lead to different interpretations for the same or similar injury. For example, a fracture of a bone in your hand might be considered minor since it did not affect you in a substantial way and you were still able to work or perform your usual daily activities though with some limitations.
The identical injury on another person, however, could result in that person being unable to perform his work or enjoy his favorite hobby or sport for a time and has resulted in chronic stiffness. In this case, a jury could conclude the injury was serious.
A prosecutor would have the victim describe the injury and any limitations she has or had for several weeks or longer. Photographs of the injury might show extensive bruising, numerous sutures and perhaps an infection that resulted despite caring for the wound.
If medical care was sought and performed, then the treating physician could corroborate the victim’s assertions of limited physical activity or that an organ was harmed and the victim had, for example, difficulty urinating or breathing for a few weeks or more.
Of course, there are obvious injuries that any reasonable jury would conclude are serious such as paralysis or a crushing injury. A broken leg or arm could suffice but not necessarily a broken nose. But if a small bone was fractured in the victim’s hand, foot or arm, then a jury could reasonably conclude it was not a serious injury.
There are a several defenses to aggravated battery which may be relevant depending upon the specific circumstances of each case.
The main defense to aggravated battery is self-defense. This is an affirmative defense, meaning that the defendant must raise and prove it so that a jury would deem the defendant’s actions as reasonable under the factual circumstances. Of course, There are several elements to self-defense:
- You had a reasonable belief that you or someone else was in imminent danger of suffering bodily injury or being touched in a harmful or offensive manner
- You had a reasonable belief that the immediate use of force was necessary to defend against that danger
- You used no more than reasonable force that was necessary under the circumstances to defend yourself
You no longer have to retreat once the danger has passed and may even pursue the attacker until the danger of bodily injury has passed.
If you are relying on this defense and there is substantial evidence to support it that is not inconsistent with your theory of the case, then the trial court must give the jury instruction on self-defense to the jury. In any event, you can request that the instruction be given even if it appears inconsistent with your theory of what occurred.
If this defense is raised, the prosecution must prove beyond a reasonable doubt that you did not act in self-defense.
You can be convicted of Penal Code 243(d) if you intentionally made contact with someone in an offensive or harmful manner6, regardless of the force applied, and a serious injury resulted, regardless if that was your intent. However, you cannot be convicted if the touching was unintended or accidental. If you were making your way through a crowded room or street and accidentally bumped someone who fell and hit their head, there is no battery.
However, if you intended to hit someone with a pipe or other object but missed them and hit someone else, then this is not considered an accident. Your intent to strike someone else in a harmful or offensive manner is transferred to the person you actually struck even if you had no intent to hit that individual.
If you were intoxicated and stumbled and bumped into someone who fell and broke a leg, there is no intent to contact someone. However, you could face charges of disorderly conduct or being drunk in public.
Whether an injury is serious so as to warrant a charge of aggravated battery is largely subjective in many cases. Even a broken bone is not necessarily a serious injury if it is not a serious impairment of a physical condition. A fracture of a bone that does not require a cast or does not interfere with a person’s mobility, ability to work, drive or perform other household tasks may not arise to the level of “serious injury.”
While it is not required for an injury to be considered “serious” that the victim seek and receive medical treatment, the fact that medical treatment was received does not automatically render the injury “serious” either. Some victims may exaggerate their symptoms that a medical report or testimony from the treating physician can corroborate or show that the victim was alleging symptoms that were inconsistent with the injury.
If your defense attorney has such evidence, then the prosecutor might be persuaded to reduce the charges to simple battery or assault, a misdemeanor.
If a prosecutor feels the evidence is sufficient to charge you with aggravated battery, he or she can still charge the offense as a misdemeanor, since this is a “wobbler”offense. If this is your first offense and the injury is borderline serious, then depending on the assessment of the filing deputy you may be charged with a misdemeanor. But if you caused someone extensive injuries regardless of your criminal history or past, you are likely to be charged with a felony.
|Fine||Not to exceed $1,000||Not to exceed $10,0000|
|Probation||Summary or information probation||Formal Probation (restrictive conditions imposed)|
|County Jail||Max of 1 year||2,3 or 4 years|
If you caused someone to suffer a serious bodily injury, it may or may not rise to the level of “great bodily injury.” This is defined as a significant or substantial physical injury. If the prosecutor feels that the injury constitutes “great bodily injury,”7 and the trier-of-fact agrees, then you face an additional 3 to 6 years in prison that is to be served consecutively and not concurrently. Your maximum sentence could be as much as 10 years.
If you did cause a GBI, this also constitutes a “strike” under California’s three-strikes law.
A judge will also consider enhancing your sentence if the victim was at least 70 years of age or under 5 years of age and the injury was severe. If the underlying offense was domestic battery or a sex offense, you face possible enhancement of up to 6 years.
For an injury to rise to the level of “great bodily injury” or GBI. A prosecutor as well as the trier-of-fact will look at these factors:
- Severity of the injury
- Degree of pain
- Extent and nature of medical care
In other words, the injury has to be more severe than the type of injury that would normally result from the underlying offense.
Examples of what constitutes great bodily injury include:
- Permanent paralysis
- Loss of an eye
- Loss of hearing
- Loss of a limb
- Severe concussion
- Other brain injury resulting in a coma or brain damage
- Serious disfigurement
- Severe pain inflicted by torture
- Fractured pelvis requiring surgery
- Gunshot wounds
- Stab wounds if not superficial
- Strangulation to the point of nearly passing out
- Severe discoloration and bruising visible the day after a beating
- Second degree burns
- Fractured jaw
- Broken hand
- Broken nose
- Black eye bruising and discoloration visible months after the incident
Not all of these injuries may necessarily constitute a GBI since different juries could determine otherwise based on the same type of injury.
Frequently Asked Questions
What is serious bodily injury?
Serious bodily injury is a serious impairment of a physical condition, including but not limited to the following: loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement.1 Based on this definition, a broken arm or leg would constitute a serious bodily injury.
Physical injuries that are considered serious may include loss of consciousness, a concussion, wounds requiring suturing, and disfigurement. It is not required that the injured person seek medical attention. This list is not all-inclusive, and the determination of whether an injury is a “serious bodily injury” is a question for the jury to decide in each individual case.
- California Penal Code 243 PC [↩]
What if someone just got a bruise in a fight? Is that serious?
There is no bright line rule to determine what is “serious”. There is case law that has found a bruise to be a serious bodily injury, meeting the requirements under the Code. It’s important to consult an attorney, because a conviction of assault inflicting serious bodily injury carries a prison sentence. A good defense attorney will argue all aspects of your case including that the injury inflicted was not serious.
What if I acted in self-defense?
Self-defense is a valid legal defense to battery causing serious bodily injury. To assert self-defense it must be shown that you reasonably believed that you were in imminent danger of suffering bodily injury and that you reasonably believed that the immediate use of force was necessary to defend against that danger. Defense of others is also a valid defense. You should consult an attorney to discuss these defenses if you have been charged with assault inflicting serious bodily injury.
What if I had been drinking and that is why I got in a fight?
Voluntary intoxication can only assist a defendant’s case if he/she is charged with a specific intent crime. A specific intent crime differs from a general intent crime. Specific intent crimes require the intent to do a further act or achieve a further consequence than just the particular act. Generally, assaults are not specific intent crimes as the only intent is that the intended offensive touching occur. The defense of voluntary intoxication is generally not an applicable defense on an assault charge. The distinction between specific intent and general intent crimes is confusing, and although there is a legal difference between specific and general intent, the argument may still be made in court.
What if I have no convictions on my record and this is my first offense?
A defense attorney can discuss your criminal record with the prosecutor to try and mitigate your sentence. If you have no prior convictions and this is the first time you have been in trouble, you are likely a good candidate for probation if you are convicted.
Misdemeanor probation is referred to as summary probation in California. It can include some time in the county jail, however the main focus of probation is to serve your time under court supervision and outside jail. Misdemeanor probation typically lasts between 1 and 3 years and involves conditions of paying fines and performing community service. Unlike felony probation, there is no probation officer that you must report to, however you are required to appear in court before a judge to track your progress.
Felony probation in California is referred to as formal probation. Felony probation has specific conditions and requirements. You are required to meet with a probation officer, comply with other court ordered conditions, make restitution to a victim, and sometimes serve a jail sentence. It is up to the judge to determine if you are a good candidate for probation.
What if I was wrongfully accused?
Often assault charges are incurred during a bar fight and it is hard to identify who did what. Often times the wrong individual may be identified and charged. The prosecution must prove that the defendant is the one to cause the injury. Mistaken identity is a viable defense and should be explored with your attorney.
What Is The Difference Between An Assault and a Battery
Assault and battery are used interchangeably but they do have different meanings in the law. An assault is really an attempted battery or an action that could result in a battery or the infliction of physical harm or unwanted touching of another person. You need not actually touch another person to be guilty of an assault.
As assault may consist of making threats of physical harm combined with the present ability or perceived ability to carry them out. Raising your fist or pointing a knife or firearm or any other object at someone in an aggressive or threatening manner is considered assault.
A battery is an unlawful, offensive or harmful touching of another person.
What Happens If The Battery Was Commited On A "Peace Officer"
There are harsher penalties in California if you knowingly commit a battery against a law enforcement officer. These offenses are referred to as against a “peace officer” and include specific classes of individuals. They include law enforcement, police, firefighters, EMT’s, traffic officers, process serves, and many more.
A simple battery committed against a “peace officer” while engaged in the performance of their duties is a misdemeanor, however the potential jail sentences increases to 1 year. If a peace officer is injured due to the battery, regardless of how serious the injury is, the crime is a wobbler. You could potentially be charged with a felony offense subjecting you to 16 months, 2 years or 3 years in jail.1
The punishment can become more severe if an assault or battery is committed against a peace officer with the use of a firearm. The penalty of imprisonment increases up to 4, 6 or 8 years.2
The following links have information on the criminal court process:
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years [↩]
- California Penal Code § 7(1) The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage., available at http://codes.findlaw.com/ca/penal-code/pen-sect-7.html. People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402], available at https://www.courtlistener.com/opinion/2272215/people-v-lara/ [↩]
- California Penal Code 243(f)(4) – (4) “Serious bodily injury” means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement, available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=243.&lawCode=PEN [↩]
- A battery is any willful and unlawful use of force or violence upon the person of another. [↩]
- Medical Treatment is Not an Element. People v. Wade (2012) 204 Cal.App.4th 1142, 1148–1150 [139 Cal.Rptr.3d 529], available at https://www.casemine.com/judgement/us/5914f907add7b0493499fa65 [↩]
- People v. Martinez (1970) 3Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching] [↩]
- Penal Code 12022.7 PC – (a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, “paralysis” means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years.(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, “domestic violence” has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, “great bodily injury” means a significant or substantial physical injury. (g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense. (h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense. [↩]