Assault v. Battery: What’s the Difference in California?

You’ve likely heard the phrase “assault and battery” many times. But you might be surprised to learn that assault and battery are not the same thing. In California, there are two separate crimes with different requirements and consequences. 

This article defines assault and battery. It also outlines some rules and defenses for both crimes. Finally, it explains how a Marin County criminal defense lawyer can help you.  

The Basics of Assault in California

California Penal Code § 240 says, “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” This is also known as simple assault. The word “attempt” is important. This means the accused need not cause an injury. In fact, they don’t even need to make contact with another person’s body. Instead, the California Supreme Court has said that “assault criminalizes conduct based on what might have happened.” While it might seem wrong to punish someone who didn’t actually cause an injury, think about these examples: 

• Swinging at someone and missing
• Pointing a loaded gun at someone 
• Throwing an object at someone but missing

All of these actions have the potential to cause serious harm, even if no one is hurt. So, the law needs to handle the conduct before it goes too far. 

To get a conviction for simple assault, the prosecutor must prove that the accused person: 

• Intentionally, 
• Acted in a way that was likely to result in the application of force to another person, 
• Knew that a reasonable person would believe that their actions could result in the application of force to another person, and 
• Had the present ability to apply force to another person. 

“Application of force” means to touch someone in a harmful or offensive manner. “Present ability” means that the person has, at that moment, the ability to apply physical force. So, if a person says, “I’m going to beat you up tomorrow,” threatens with a water gun, or raises their fist from across the street, they don’t have the “present ability” because the threat isn’t immediate, they don’t have the ability to cause harm, or they aren’t close enough to pose a threat. 

Also, a verbal threat that is not accompanied by the present ability to carry it out will not suffice. Saying, “I’ll hit you,” while standing directly in front of someone with a raised fist is an assault, but saying the same thing over the phone is not, as there is no present ability.  

California’s Battery Law 

California Penal Code § 242 says, “A battery is any willful and unlawful use of force or violence upon the person of another.” This is simple battery. To prove this crime, there must be evidence that the accused willfully and unlawfully touched someone in a harmful or offensive manner. Note that under current law, even the slightest touching can be enough to commit a battery if it is done in a rude or angry way. For instance, gently tapping another bus patron on the shoulder to get their attention is not battery because it is not rude or angry. However, poking someone roughly during a heated argument would likely meet the standard. 

Also, battery does not require injury. In other words, the battery is completed the moment the contact happens. Even if the touch didn’t cause an injury, there was still a battery. 

Assault vs. Battery: Similarities and Differences 

There are many similarities between these two crimes. Neither crime requires an injury. For battery, the contact is enough even without injury. Similarly, in assault, attempting to cause harm and having the immediate ability to create that harm is sufficient even without physical harm. Also, both crimes are misdemeanors. The maximum jail time for each is six months. 

The biggest difference between assault and battery is that battery requires making contact with another person, but assault does not. Pointing a gun at someone in a menacing way without firing is an assault. Hitting someone with that gun is a battery. 

Unlike assault, battery does not require “present ability.” Present ability matters in an assault because the law needs to ensure the threat is real. Battery only considers completed contact, so whether the accused is able to make contact is immaterial. 

Finally, although simple assault and simple battery carry the same jail terms, the fines differ. The maximum fine for assault is $1000, while the maximum for battery is $2000. 

Can I Be Charged with Both Assault and Battery in California? 

Technically, yes. Assault and battery are separate crimes and require different evidence. So, prosecutors can charge both crimes. For example, A and B get into a fight at a bar. B takes a swing and misses, then takes a second swing and connects with A’s jaw. The missed punch is an assault, while the successful punch is a battery. Both can be charged.

However, the legal terrain can get complicated. If two separate crimes are charged in a way that would place one crime within the other, the lesser-included offense doctrine prevents the defendant from being convicted of both crimes. So, if this doctrine applies in a case where both assault and battery are charged, and the jury convicts on both, the judge may have to dismiss one of the counts or stay the sentence. Additionally, Section 654 of the Penal Code prohibits multiple punishments for the same course of conduct. 

These doctrines are complicated, but your Marin County criminal defense attorney can answer any questions you have. 

Fighting Back Against Assault and Battery Charges

If you are charged with simple assault or battery, you can raise several defenses. For battery, if the other person attacked you first, you might be able to argue self-defense. Or, you could argue that you had no intent to make contact. Maybe you tripped, or someone pushed you into another person. For assault, you could argue that you didn’t have the present ability to make good on the threat.  

While several solid defenses to assault and battery exist, it’s difficult to raise them on your own. The best way to protect your rights is to talk to a Marin County criminal defense attorney. If you need legal help to defend against assault, battery, or any other criminal charge, contact Brownstein Law Group. We will fight tirelessly to get the best possible outcome. To learn more about how we can fight for you, call 415-965-6183 or use our online form to schedule an appointment.