~ BATTERY & RELATED CRIMES ~

California Penal Code §§ 240 and 242 are often discussed in tandem as many times when someone is hit (a battery) they saw the blow coming (an assault). In reality, these are two separate and distinct crimes, although a conviction for battery will also include the “lesser included crime” of assault. While it is possible to get convicted for both an assault and a battery, because assault is a lesser included crime, you will typically only get convicted of the more serious crime of battery. A lesser included crime is one where all of the elements necessary to obtain a conviction are also part of a more serious crime as well.

"Simple" Battery

A Penal Code § 242 battery occurs when a person willfully uses force or violence against another person. There are different degrees of battery that can be charged depending on the circumstance of the case. For example, in its simplest terms, if someone is struck by the Defendant without receiving a serious injury, the District Attorney may file charges for simple battery, which is a misdemeanor and can be punishable by six (6) months in the County jail and a $2,000 fine, or both. Community service or attendance in a batterer’s treatment program may also be a condition of any sentencing.

One of the necessary elements to obtain a battery conviction is that the act be “willful,” with can be a tricky term to define. For example, willful(ly) does not mean that you intended to break the law or even hurt someone. Say for example in the middle of a heated argument, you slam a glass down on the table causing it to break unexpectedly. The glass shards fly across the room and cut someone at another table. While you clearly didn’t intend to hurt anyone with the broken glass shards, you did so by acting negligently when you willfully slammed the glass down on the table. Slamming the glass was an intentional act and under the circumstances it was also reckless, which makes you liable for the injuries caused by your unintended act.

Another element, “force” is also a somewhat nebulous term. In the legal sense of the word, “force” does not mean violent or even strong. In fact, even the slightest touch can be considered sufficient “force” if done in a rude, angry or disrespectful manner. For example, gently brushing against the buttocks of a waitress in a restaurant, if done intentionally, can be sufficient to be charged with battery. On the other hand, accidently bumping into someone forcefully in the same crowded restaurant is not.

Penal Code § 242 states that:

A battery is any willful and unlawful use of force or violence upon the person of another.

Aggravated Battery

If the battery results in serious bodily injury to another person, the case may be filed as an Aggravated Battery under Penal Code § 243 (d), which is also known as a “wobbler,” meaning that it can be filed as either a felony or misdemeanor, depending on the facts of the case, including the injuries received by the victim and the Defendant’s own personal criminal history (called a rap sheet).

A felony conviction may result in a “Strike” on the Defendant’s criminal record because of the violent nature of the crime, along with imprisonment for 2, 3 or 4 years and a fine of up to $10,000. A misdemeanor conviction can be punishable by a fine of up to $1,000 and one year in the County jail.

Penal Code § 243 (d) states that:

(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.Assault with a Deadly Weapon

If the battery involved the use of a weapon or some other item likely to cause great bodily injury (shoes and bottles are often charged as “deadly weapons”), the District Attorney will typically file charges for both a Battery and an Assault with a Deadly Weapon under Penal Code § 245.

A felony conviction will likely result in a “Strike” on the Defendant’s criminal record because of the violent nature of the crime, and if the “weapon” was something other than a firearm (a gun), the punishment can include either a commitment to County jail that does not exceed one year or a State Prison sentence for 2, 3 or 4 years or by both a fine of up to $10,000 and imprisonment. Penal Code § 245 (a) (1).

If the “weapon” was a firearm (gun), other than discussed below, the punishment can include either a minimum of six (6) months and a maximum or one (1) year in the County jail or a sentence to State Prison for two, three or four years. In additional to any jail sentence, a fine that does not exceed $10,000 may be assessed as well. Penal Code § 245 (a) (2).

If the firearm was:

A semi-automatic weapon, the punishment is increased to 3, 6 or 9 years in the State Prison (Penal Code § 245 (b);

A machinegun, an assault weapon or a rifle using the .50 BMG cartridge (.50 caliber Browning Machine Gun cartridge), the punishment is increased to 3, 6 or 9 years in the State Prison (Penal Code § 245 (a)(3).

If the assault was on a fireman or police officer with a weapon or instrument other than a firearm and the Defendant knew or “reasonably should have known” that the victim was a police officer or fireman engaged in the official performance of their duties, the punishment can include a sentence to State Prison for three, four or five years (Penal Code § 245 (c)).

If a firearm, other than discussed below was used in an assault against a fireman or police officer and the Defendant knew or “reasonably should have known” that the victim was a police officer or fireman engaged in the official performance of their duties, the punishment can include a sentence to State Prison for four, six or eight years (Penal Code § 245 (d) (1).

If the firearm used in an assault against a fireman or police officer was a semiautomatic firearm and the Defendant knew or “reasonably should have known” that the victim was a police officer or fireman engaged in the official performance of their duties, the punishment can include a sentence to State Prison for five, seven or nine years (Penal Code § 245 (d) (2)).

If the firearm used in an assault against a fireman or police officer was a machinegun, an assault weapon or a rifle using the .50 BMG cartridge (.50 caliber Browning Machine Gun cartridge) and the Defendant knew or “reasonably should have known” that the victim was a police officer or fireman engaged in the official performance of their duties, the punishment can include a sentence to State Prison for six, nine or twelve years (Penal Code § 245 (d) (3)).

Battery on a Police Officer

Currently being drafted. Please check back later.

To view the list of crimes by code section (Statute), please click here.

To return to the list of California crimes in alphabetical order, please click here.

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