California Penal Code section 2421 defines “simple battery” as having three main elements:
- Unlawful and willful;
- Application of force or violence;
- Upon the person of another.
The touching, contact, or force can be accomplished indirectly by causing an object, or someone else, to touch the other person.
Example: Justin was at a rock concert, when another patron threw up a beer bottle in the air, hitting Justin on his head. The patron later claimed that he did not do it intentionally, as he was drunk and did not know what he was doing. In this situation, the patron is guilty of battery. The nature of Justin’s injury will determine whether the patron committed a simple or aggravated battery. If Justin did not suffer any injury or his injury was not serious, the court may determine that it was a simple battery. Conversely, if Justin sustained a serious head injury, the patron will be charged with aggravated battery.
Moreover, it does not matter that the patron was intoxicated, because “voluntary intoxication” is not a defense to battery. Therefore, the act of throwing the bottle in the air will meet the “willful act” requirement for a battery conviction despite the fact that the patron was intoxicated.
Many people consider “assault” and “battery” to be the same offense, but they are two distinct crimes. An “assault” is essentially an attempt to injure another person.Whereas “battery” is the unlawful use of force or violence upon another person. The key distinction is that an assault does not require any physical contact or injury, whereas a battery requires some type of physical contact regardless of how slight.
Assault: The distinction can be illustration by the following example: a man with a severe case of road rage is provoked by the fact that a woman gets ahead of him in the freeway lane while entering the freeway. Enraged to such a degree that he is determined to ram him car into hers, he speeds up and engages in threatening driving behavior by swerving closer and closer to her car as if he is going to hit her car. The woman is terrified of getting hit by the man’s car so she keeps swerving to the right to avoid colliding with his car. Even though the man’s car never collides with the woman’s car, the man can be charged with assault under california penal code 240, because he engaged in the willful and violent behavior of attempting to collide with the woman’s car on the freeway and he has the present ability to carry out the threat.
Battery: If the man’s car actually succeeds at colliding with the woman’s car, the man can be charged with both assault and battery. However, because assault is a lesser included offense of battery, he can only be convicted of one or the other.5
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To prove that the defendant is guilty of battery under Penal Code section 242, the prosecution must prove the following facts or elements:
- The defendant willfully and unlawfully
- Used force or violence, or touched in a harmful or offensive manner The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object or someone else to touch the other person.
- The person of another.
A defendant’s act has to be willful to qualify for battery, meaning the defendant intended to carry out the act. Any touching may qualify, no matter how slight, whether it was direct or indirect (i.e. touching that occurred when defendant used another instrument, or another person).
John, a homeless man, who has not eaten for days, was looking for someone to give him either food or money to buy food. When he saw a woman pull up in her car, he asked her for food or money, but she refused to offer him either one. When she opened the car door and got out of the car, he noticed a grocery bag full of food in the passenger side. Frustrated and angered by the woman’s refusal to offer him any help, the man wanted to throw his shoe at her. He took off his old, torn up shoe and waived it in the air only intending to scare the woman. The shoe was falling apart, and as the man waived it in the air, the shoe sole came off and hit the woman in her face. Scared that the man is going to attack her, the woman screamed and ran towards the park, leaving her car door wide open.
John cannot assert that he did not willfully throw the shoe, because he willfully waived the shoe in the air, which act resulted in the soul being torn off and hitting the woman. However, John may be able to successfully assert the defense of “accident,” to argue that the shoe soul accidentally flew off and hit the woman in the face, because it was an old shoe that was coming apart, and had it not been for the accident, he would have never thrown the shoe at the woman.
There are various defenses that can be asserted on your behalf to fight a charge of battery. Here are the most common ones:
Self-defense/Defense of Others: If the defendant acted in self-defense or defense of others, he/she cannot not be convicted of assault. To assert this defense, the defendant has to have a reasonable belief that he/she or another person is likely to be physically harmed and is justified in using force that is proportionate to the threatened force to repel the attack.
Example: Ken was at a car wash when another customer attacked him. Ken did not know the man, but when he saw the man getting ready to punch him in the face, Ken quickly reacted by punching him first. Because Ken acted in self-defense and because he applied force that was proportionate to repel the attacker, he will not be convicted of battery.
Accident: This defense applies in a situation when the defendant does not willfully inflict force or injury onto another person.
- Car accident
- Accidentally dropping an object from a balcony that hits another
- An accidental bicycle collision
- Accidentally tripping or shoving someone in a crowded bus or crowded street
Consent: Consent is typically a defense to battery if a person engages in an activity where there is a widespread acceptance of the risk of battery. This usually applies to sports games or other inherently dangerous activities.
Example: Keith is a baseball player and while at bat, a ball pitched by Joe hit him in the face. Because baseball typically involves pitching and batting and both of these activities involve a degree of risk that the players impliedly accept, Joe will not be convicted of battery, because Joe will have a valid defense of consent.
Compare the above example to the next one where the injury is beyond the scope of consent:
Keith is a pitcher and while he was standing in the dugout in between innings, Joe, one of the players from the opposite team, came up to him and hit him on the head with a bat, because he was angered by the way Keith pitched in the previous game which resulted in a loss for his team. In this case, Joe could be charged with battery because Keith’s implied consent does not extend to situations in which he is in the dugout in between innings. Moreover, the implied consent does not apply to situations of intentional battery that does not involve game-related behavior. Therefore, Joe can be charged with battery.
- Voluntary Intoxication – is not a defense to battery: In California, a defendant who commits battery while intoxicated cannot claim voluntary intoxication as a defense. The reasoning behind the law is that defendants know (or should know) that alcohol and drugs affect mental functioning, and holds them legally responsible if they commit crimes as a result of their voluntary use. However, if a defendant can show that he/she was involuntarily intoxicated, the defendant will not be found guilty of the battery because he/she did not choose to consume the intoxicating substance.
- Provocation – is not a defense to battery: It is no defense to a battery crime that the defendant was responding to a provocative act that was not a threat or an attempt to inﬂict physical injury. Words alone, no matter how offensive or exasperating, are not an excuse for this crime.
Example: An example to this is the hypothetical above when the man with road rage was provoked when the woman got ahead of him in the car lane while entering the freeway. His violent reaction of trying to collide with her is not excused by the fact that he was unreasonably provoked by her actions.
Any battery conviction can result in severe penalties, possibly including jail time. If you are facing battery charges under California Penal Code 242, you may be facing the following penalties.
- Fine Not Exceeding $2,000
- Imprisonment in a county jail not exceeding 6 months
- Both a fine and imprisonment
- Anger Management Classes
Aggravated Battery/Battery Causing Serious Bodily Injury: Under California Penal Code 243(d) – Battery Causing Serious Bodily Injury, applies when a battery is committed against any person and serious bodily injury is inflicted on the person. Such 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..)
Battery Against Elder or Dependent Adult: When a battery is committed against an elder or dependent adult, as deﬁned in Penal Code section 368, with knowledge that the victim is an elder or a dependent adult, special punishments apply. (Penal Code 243.25.)
Assault With a Deadly Weapon: California Penal Code 245(a)(1) provides that anyone who commits an assault upon another person with a deadly weapon or instrument other than a firearm, will be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for up to one year, or by a fine not exceeding ten thousand dollars $10,000, or by both the fine and imprisonment.
Domestic Battery: California “Domestic Battery laws” Penal Code 243(e)(1) applies when a battery is committed against any of the following individuals: spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine up to $2,000, or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. See Also Domestic Violence penal code 273.5
Sexual Battery California Penal Code 243.4 provides the law on “sexual battery,” which includes the non-consensual touching of another’s private parts for: (1) sexual arousal, (2) sexual gratification, or (3) sexual abuse.
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If you have been charged with a battery and have any questions an attorney at the Aizman Law Firm can help answer those questions and identify the defenses in your case to get you the best possible result. Contact us at 818-649-5588 for a free case evaluation.
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- Penal Code 242 PC – A battery is any willful and unlawful use of force or violence upon the person of another. [↩]