Assault in California is an intentional attempt to physically injure another, or a menacing or threatening act or statement that causes the other person to believe they are about to be attacked. This crime doesn’t involve actual physical contact. Battery is the intentional and unlawful use of force or violence against another—physical contact is involved here. Assault or battery with a deadly weapon or with force likely to cause great bodily injury are more serious crimes, classified as felonies.
(Cal. Penal Code § § 240, 242).
Someone who commits a simple assault or battery in California generally is guilty of a misdemeanor, although certain assault and battery crimes can be charged as a misdemeanor or a felony, at the prosecutor’s discretion (these crimes are called “wobblers”). When a simple assault or battery is charged as a felony, the court can reduce the crime to a misdemeanor during the case proceedings.
For more information on assault with a handgun, semi-automatic weapon, or other firearm, see Assault with a Firearm in California.
Taking a swing at someone during a heated argument (but missing) is a simple assault in California, as long as the intended victim was within striking distance. Though words alone are not assault, threatening to hit someone with an object is considered assault when accompanied by an action that shows intent to carry out the threat. For assault charges, the identity of the victim is an important factor in determining the severity of the offense and the possible punishment.
Assault against many healthcare providers providing emergency treatment outside a hospital or clinic, and assault against many public workers who are engaged in the performance of their duties, carry more severe penalties than simple assault, as long as the defendant knew or should have known that the victim was a healthcare provider or public worker engaged in performing his duties. These healthcare providers and public workers include, among others:
(Cal. Penal Code § § 241, 241.1, 241.3, 241.5, 241.6, 241.8).
The following simple assaults are “wobblers,” which can be charged as felonies or misdemeanors:
(Cal. Penal Code § § 241.1, 241.4, 241.7, 1170).
Striking another person with a fist during an argument or shoving someone are straightforward examples of battery. Pushing someone or hitting someone with a small object that physically injures the other person are also examples of battery.
As with assault, the identity of the victim is an important factor in determining the severity of a battery offense and the possible punishment. Battery against many public workers and healthcare providers during the performance of their duties, including fire fighters, lifeguards, public transit workers, animal control officers, and probation department employees, carries more severe penalties than simple battery against other victims, if the person committing the offense knew or should have known that the victim was such a public worker engaged in performing his duties.
(Cal. Penal Code § § 242, 243).
The following simple battery offenses are misdemeanors, but subject to more severe penalties than simple battery against other victims. They involve assaults against:
(Cal. Penal Code § § 243, 243.25, 243.3, 243.35, 243.6, 243.65, 243.8, 243.2).
The following battery offenses can be charged as felonies or misdemeanors:
(Cal. Penal Code § § 243.1, 243.7, 243, 243.6).
For an act to constitute criminal assault or battery, the conduct must be intentional. An action that is accidental is not a crime. For example, if someone brushes up against a friend in a sexually suggestive manner as a joke, that person may not have criminal intent. An offender’s claim that he did not know that an intentional, angry and/or menacing act was against the law, however, is usually not a defense and does not negate intent.
A person who is convicted of simple assault faces the following possible penalties:
(Cal. Penal Code § 241).
Possible penalties for a simple assault against a healthcare provider or public worker (listed above) while performing his duties, as referenced above, include:
(Cal. Penal Code § § 241, 241.5, 241.6).
Wobbler assaults carry the following possible penalties:
(Cal. Penal Code § § 241.1, 241.2, 241.4, 241.7, 241.8).
The basic penalties for simple battery charged as a misdemeanor include:
(Cal. Penal Code § 243).
The enhanced penalty for other battery offenses (such as battery against a healthcare provider or public worker, domestic violence battery, and battery on school property) includes:
(Cal. Penal Code § § 243, 243.2, 243.25, 243.3, 243.35, 243.6, 243.65, 243.8).
Penalties for wobbler batteries charged as a felony include:
(Cal. Penal Code § § 1170, 243).
If the victim of a simple battery charged as a felony is a law enforcement officer engaged in performing his duties (even if he happens to be working as a private security officer), and the offender knew or should have known the victim was a police officer, the possible penalties are:
(Cal. Penal Code § 243).
The court can impose probation instead of jail time for an entire sentence, or after the person convicted has spent some time in jail. For instance, a judge in an assault or battery case in California can order 30 days in jail and five months’ probation.
A person on probation must meet regularly with a probation officer and comply with conditions set by the court, such as no further arrests or convictions, attending counseling, performing community service, or electronic home detention, commonly referred to as “house arrest.” Under electronic home detention, the person on probation wears an electronic monitoring device or “ankle bracelet” and usually is restricted to home and work. If a person violates a condition of probation, he can be arrested and required to serve the remainder or a remaining part of his sentence in jail.
A person convicted of assault or battery is required to pay restitution, which means reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling. The court can require someone convicted of a misdemeanor to pay between $150 and $1,000 in restitution; and someone convicted of a felony to pay between $300 and $10,000, depending on the damages to the victim and other factors. Restitution orders are the norm—the court may elect not to require restitution only in very unusual situations for compelling reasons.
(Cal. Penal Code § 1202.4).
If you are facing an assault or battery charge, an attorney can investigate the case and determine if you were wrongfully charged or there are other reasons why the case should be dismissed before trial. If the charges are not dismissed, an attorney may be able negotiate a plea bargain with the prosecutor on your behalf or prepare a defense and represent you at trial if you believe you have been wrongly accused or if there are no reasonable plea options. Prosecutors often will negotiate and agree to a let the defendant plead guilty to a different, less serious crime. Or, the prosecutor may agree to a lighter sentence, such as probation, in exchange for a plea of guilty to the charge.
A conviction for a misdemeanor or felony becomes part of your permanent criminal record, which can have a serious impact on your life. If you are convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. A criminal record – even a misdemeanor conviction –can hurt you when you are looking for a job or applying to rent a house or apartment.
A convicted felon loses the right to vote, hold public office, serve as a juror, and carry or own firearms. In certain circumstances, a felony conviction also can result in loss of a professional license. Felons who face criminal charges later may find that the new charges are more serious because of their prior conviction(s).
Only someone familiar with the local criminal court system and cases like yours will know how good your chances are for a favorable outcome in court or at the negotiating table. A knowledgeable attorney will take all of this into consideration, assist you in making decisions about your case, and protect your rights.