California Penal Code section 2421 defines “simple battery” as having three main elements:
Unlawful and willful;
Use 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.
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.
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 threat2.
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 other3.
To prove that the defendant is guilty of battery under Penal Code section 242, the prosecution must prove the following facts or elements:
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.
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).
There are various defenses that can be asserted on your behalf to fight a charge of battery. Here are the most common ones:
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.
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 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.
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.
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 penalties7).
|Fine||Max Of $2,000|
|Anger Management Classes||Negotiable|
|Firearm Ban||10 Years|
|County Jail||Not To Exceed 6 Months|
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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- Penal Code 242 PC – A battery is any willful and unlawful use of force or violence upon the person of another., available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=242. [↩]
- Penal Code 240-Defined, An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another [↩]
- Pen. Code, §242; CALCRIM, No. 960. [↩]
- Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. Willful Deﬁned. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]. [↩]
- The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d 518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr. 172, 479 P.2d 372]]. [↩]
- Making contact with another person, including through his or her clothing, is enough. Elements. Pen. Code, §242. [↩]
- Elements. Pen. Code, §243(a). (“ A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment.” [↩]