240 and 242

Assault and Battery

California defines Assault, CA Penal Code 240[1], as willfully acting in a manner that would likely and knowingly result in the application of force upon another. While Battery, CA Penal Code 242[2], is defined as willfully and unlawfully touching a person in a harmful and/or offensive manner.

The difference in the two definitions is that Assault does not require any psychical contact with another person, while Battery does require physical contact with another person. It’s important to note that you can be charged with both Assault and Battery, but can only sentenced for the greater crime of Battery.

Both crimes are considered misdemeanors and the punishments are as follows:

Assault – CA Penal Code 240:

  • Informal probation
  • Up to six months in county jail
  • Community service
  • Up to $1,000 in fines
  • Forced to participate in a Batterer’s Program

Battery – CA Penal Code 242:

  • Informal probation
  • Up to six months in county jail
  • Community service
  • Up to $2,000 in fines
  • Forced to participate in a Batterer’s Program

Prosecuting Assault and Battery

Prosecuting either an Assault or a Battery charge can be relatively difficult because a lot of the evidence that the prosecutor has to work with is he said, she said evidence. The prosecutor must be able to prove the three elements of the crime in order to successfully convict you of either Battery:

  1.  That you willfully,
  2.  Touched, or applied force, or physical contact,
  3.  Upon another person.

The first element of the crime that the prosecutor must prove is that the action you took was willful and intentional. In legal terms, willfully means that the action was performed on purpose.

The second element of the crime that the prosecutor must prove is that you touched, or applied force. The terms force and violence are synonymous in the eyes of the law. The smallest touch is sufficient for Battery arrest as long as the action was performed in a crude, aggressive or disrespectful manner.

The final element of the case that the prosecutor must prove is that your actions were performed upon another. In the eyes of the law, this means that you physical touched:

  1. The person
  2. His or her clothing
  3. Anything attached or connected to that person

If the prosecutor cannot prove each and everyone of these elements then a conviction will not take place.

Defending Assault and Battery

There are several techniques that a criminal defense attorney can utilize to prove that you’re not guilty of either Assault and/or Battery. These techniques include proving that you acted in self-defense or you were defending another, the physical force was an accident, or you had consent to act the way you did.

The most common defense for an Assault or Battery charge is that you were acting in self-defense. This technique works if you reasonably believed that physical violence was the only way to protect yourself, or another, from being assaulted or battered. However, your actions are only protected by the law if you didn’t use excessive violence when protecting yourself.

Your criminal defense attorney can also prove that the physical violence you administered upon another was an accident. One of the elements of the crime is that you willfully apply force upon another. If you did not act willfully then the you didn’t commit a crime.

For example, if you were at a crowded bar and somebody nudged your arm accidentally and you subsequently spilled your drink on another person then you shouldn’t be convicted of Battery because you didn’t intent to spill your drink on anybody.

Another technique that your criminal defense attorney can employ is to prove that you had consent to act the way you did. For instance, if were working in an environment where physical violence is inevitable then you shouldn’t be convicted of Battery.

For example, if you were playing a contact sport and you aggressively tackled another person then you can’t be convicted of Battery, as long as you didn’t exceed an appropriate level of violence.

Related Crimes

If the level of violence is excessive and the victim sustains serious bodily injury then you could be charged with Aggravated Battery, CA Penal Code 243(d) [3]. Aggravated Battery is a wobbler, meaning it can be charged as either a felony or a misdemeanor, depending on the facts of the case and your criminal record. If your case is considered a felony and you are convicted then you get receive a “strike” in accordance to California’s Three Strike Law.

CA Penal Code 243(e)(1) [4] refers to Domestic Battery. The elements of the crime are nearly identical to simple Battery, but the victim must be an intimate partner. For instance, a fiancé, spouse (current or former), a cohabitant, parent of your child, or someone who you’re dating.

CA Penal Code 243.4 [5], Sexual Battery, refers to the unsolicited touching of another’s intimate body parts for (1) sexual arousal, (2) sexual gratification, or (3) sexual abuse. The elements of sexual battery cases are typically very specific and difficult for prosecutors to prove.

CA Penal Code 245(a)(1) [6], Assault with a Deadly Weapon, refers to an attempt to assault somebody with any deadly weapon. In broad terms, the assault was likely to cause great bodily injury to a victim. Assault with a Deadly Weapon is a violent felony and could result in a “strike” in accordance to California’s Three Strikes Law.



[1] CA Penal Code 240 An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

[2] CA Penal Code 242 A battery is any willful and unlawful use of force or violence upon the person of another.

[3] CA Penal Code 243(d) 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.

[4] CA Penal Code 243(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, 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 not exceeding two thousand dollars ($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. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.

[5] CA Penal Code 243.4(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

[6] CA Penal Code 245(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

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