Assault & Battery

Penal Code Section 240 (Assault) States:

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

Penal Code Section 242/243(a) (Battery) States:

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

Assault – The Law: 

You can still be charged with assault even if you did not successfully strike the other person provided the intended victim was aware that you intended to strike him or her. Of course, you must be capable of the assault in the first place. Assault does not require the physical touching of the victim.

Aggravated assault is an attack while committing another crime.

An example of an aggravated assault would be beating a person while robbing them. Committing a violent crime such as assault and aggravated assault allows for both criminal charges, as well as, a civil lawsuit.

The punishment for criminal assault is a fine, imprisonment, or both.

Penalties are more severe when the assault is aggravated. Many states have statutes dividing criminal assault into various degrees. As in aggravated assault, the severity of the crime, the extent of violence and harm, and the criminal intent of the defendant are all factors considered in determining the severity of the sentence imposed.

ASSAULT: What the Prosecutor MUST Prove Beyond a Reasonable Doubt

Jury Instruction 915. Simple Assault

The defendant is charged [in Count ] with assault [in violation of Penal Code section 241(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant did an act that by its nature would directly and probably result in the application of force to a person;

2. The defendant did that act willfully;

3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone;

[AND]

4. When the defendant acted, (he/she) had the present ability to apply force to a person (;/.)

<Give element 5 when instructing on self-defense or defense of another.>

[AND]

5. The defendant did not act (in self-defense/ [or] in defense of someone else).]

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.

The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. 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.]

[The People are not required to prove that the defendant actually touched someone.]

The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.

No one needs to actually have been injured by the defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault [, and if so, what kind of assault it was].

[Voluntary intoxication is not a defense to assault.]

Battery – The Law

“Battery is defined as causing any physical harm or injury to the victim — such as a cut, a burn, or a bullet wound, but actual injury is not required.”

Another type of contact that may constitute battery, causes no actual physical harm, but is instead, offensive or insulting to the victim. Examples include spitting in someone’s face or offensively touching someone against his or her will.

When a battery is committed with intent to do serious harm or murder, or when it is done with a dangerous weapon, it is described as aggravated.

Criminal battery is punishable by a fine, imprisonment, or both. If the crime is determined to be aggravated, the penalties are greater.

BATTERY: What the Prosecutor MUST Prove Beyond a Reasonable Doubt

Jury Instruction 960. Simple Battery

The defendant is charged with battery [in violation of Penal Code section 243(a)].

To prove that the defendant is guilty of this crime, the People MUST prove that:

1. The defendant willfully [and unlawfully] touched <insert name> in a harmful or offensive manner(;/.)

<Give element 2 when instructing on self-defense, defense of another, or reasonable discipline.>

[AND]

2. The defendant did not act (in self-defense/ [or] in defense of someone else/ [or] while reasonably disciplining a child).]

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.

The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. 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.]

[It is no defense to this 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.]