What is Assault and/or Battery?

From the time Cain struck Abel, violence against another person has been frowned upon. The English Common Law developed several nuances to differentiate levels of harm caused to another person. In general, a battery is an offensive touching and an assault is an attempted battery. This brings us to where we need to discuss the difference between a general intent crime and a specific intent crime, because assault is a shpecific intent crime and battery is a general intent crime. As true as the previous statement is, and it is, there is a struggle by courts and law professors to explain why assault is a specific intent crime and assault with a deadly weapon (ADW) is a general intent crime. If you want some tortured logic you can read opinions from smart judges who become legal contortionists to fit ADW into the general intent box. The best I can do for you now is to tell you what your parents told you, it is “because I said so.” For now, don’t worry about specifics. Take what follows as the general rules but there are exceptions. [For anyone interested in my opinion, ADW is a general intent crime because the consequences are so severe and intent might be too hard to prove, so as a public policy our society has determined that there is no need to prove specific intent in an ADW].


A specific intent crime is one in which the perpetrator does an act coupled with an INTENT. The simplest example is theft. How many people have borrowed a pen to sign a check or a document and then realized two hours later that you still had the pen you borrowed? Is that theft? Many people would say, “Of course.” It’s not. Why? In order to commit a theft, under the law, you must take property with the intent to deprive it’s rightful owner permanently of possession. This is why there are different statutes for joy riding and auto theft. Most people, when asked to define burglary, would tell you it’s breaking into someone’s home and stealing something. Although those facts might be a burglary, it isn’t necessarily so. A burglary, under California law is entry into a structure with the intent to commit a felony OR theft. Distinction? Not every theft is a felony, but every theft can support a burglary.

If a person breaks into a vacation house because their car has broken down and sleeps inside because it’s freezing outside, it’s not a burglary because there is no intent to commit a felony or theft. If in the morning the person who entered realizes that he has hit the mother lode and the vacation house contains sophisticated electronics and he decides that he’s going to steal them, has he committed a burglary? Still no burglary. Why? Because the entry must be made with the intent to steal or commit a felony and when our hero entered, he had no intent to do anything other than seek shelter, neither a theft offense nor a felony.

Let’s make things more complicated, but necessary for a full understanding. You have made a decision that it’s easy to steal from your local hardware store. You have decided that you want a particular wrench and don’t want to spend $20 to buy it. You go into the store and realize that it’s not worth the chance of an arrest, the obliteration of your reputation and self respect, so you go to the tool department, pick out the wrench and buy it. You have committed a burglary. Obviously, this would be impossible to prove, but as a legal matter, you entered a structure with the intent to steal. At this point a burglary has been committed. Your change of heart and failure to do anything to effectuate your plan doesn’t change the fact that you committed the burglary.

As can be easily seen by the examples above, argument over intent can be difficult. In many court cases the ONLY issue is intent because the facts are clear. There are defenses in the law which eliminate criminality if the act is done without the intent which makes it illegal. The law is replete with examples. For instance, what is the difference between murder and manslaughter? Both require a person to have the intent to kill, but murder requires an additional mental state of malice. These are concepts, not important to understand fully now, but of which you should be aware.



Section 240 of the California Penal Code defines Assault.

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

Breaking the statute down into its plain meaning takes a bit of doing, but we will approach it word by word. The first word is unlawful. To violate this statute your conduct must be without legal justification or excuse. For example, taking a swing at someone who has swung at you first is justified under the legal right of self defense, therefore your attempt to hit that person is not unlawful because of your right. Not every defense is so obvious which is why whenever there is a charged violation of statute, it is best to consult someone who is familiar with the law, the underlying meaning of the law, the defenses available and the application of law to facts, not to mention the parties who are prosecuting and judging.

We next move to attempt. An attempt is simply an effort to do something. When you swing at someone and miss that is an assault, if you’re successful, it’s a battery. (more on this later). An assault is necessarily an unsuccessful attempt to commit a battery. Of course, if you’re successful, the assault becomes a battery. Even in the civil context of law suits for damages intent is import but the law allows for transferred intent. In the classic example, it is no defense to a charge of assault on Mr. X to say that you had no intent to hit him when you were trying to hit Mr. Y, but Mr. Y ducked and you hit X by mistake. Although you might say that since you had no intent to hit Mr. X and didn’t want to commit an injury on him you couldn’t have assaulted Mr. X. The law provides an exception of transferred intent. If you have the requisite intent to harm one person and in your effort you harm another by mistake, the original intent is transferred to the injured person.

The next phrase is present ability. In order to be guilty of an assault your actions must have the immediate ability to cause the injury attempted. For example, let’s say you decide that you would like to injure your next door neighbor because he mows his lawn too early on Sunday morning, and further decide that you’d like to break his arms so he can’t push his lawn mower. You then make a cardboard figure of your neighbor, put Mr. Neighbor in large letters on the cardboard cut out and then bend the figure’s arms back behind his back. You really want to break his arms and give it your best voodoo doll work. You may be sick and worthy of legal intervention, but you haven’t violated the statute because you don’t have the present ability to commit the injury. Similarly, if you pray that your ex-girlfriend’s new boyfriend gets into a car accident, you are not guilty of an assault because although you are attempting, without justification, to commit a violent injury on someone, you don’t have the present ability to complete the action.

Finally, violent injury is a requirement. This doesn’t mean that you have to actually cause a bruise or mark or laceration or anything of the sort. All you need for a violent injury is any touching, no matter how slight which is offensive. Any touching which is offensive is enough. Obviously, the law has made exceptions in all cases for routine conduct. If you go to push a button in an elevator and brush the sleeve of someone who finds it offensive, it comes within the general “life in the big city” exception. There is a certain amount of physical contact that is allowed regardless of how offensive it is to the offended party.

To recap, all that is required for an ASSAULT to be charged is for someone to attempt to have physical contact with you or something closely held by you. This can be accomplished by any part of his body or anything connected to his body. Law students spend weeks reading cases to distinguish assault from battery and what encompasses each. It is not the purpose to be all inclusive or to answer all questions, but rather to give you a basic understanding that what is an illegal assault, may well be different from what a layman calls an assault.



Battery is defined in Section 242 of the California Penal Code as any willful and unlawful use of force or violence upon the person of another.

Like we did above, we need to look at the words and/or phrases. Willful and unlawful. The use of force (no matter how slight) has to be both willful AND unlawful. As we’ve discussed above, society has to allow some contact, no matter how distasteful. In a battery, you must willfully commit the act which someone finds offensive. You do NOT have to intend to offend someone, you just need to intend to commit the act. This type of crime is a general intent crime because you don’t need the intent to do anything other than the offensive act. You could actually intend to do something nice to the victim. For example, congratulating someone by patting them on the back would be a battery if the “victim” finds your touch offensive.

Let’s go back to the pen theft example. When you take a pen, regardless of whether you intend to keep it or mistakenly put it in your pocket, the “victim” finds it equally offensive. He is without his pen and it really doesn’t matter to him why you’ve taken it, your motivation for taking it or any justification you might have. He’s without his pen and it’s an inconvenience to him. But for the law to deem it a theft, you have to intend to deprive the owner of his property.

In the battery context, you simply need to intend to use force, no matter how slight, against someone. In some cases, a very tender caress can be a battery if the receiver of the caress finds it offensive. Alternatively, an assault needs the extra intent that you want to commit the touching.

Battery is covered by Penal Code statute 242, but the Penal Code goes on for many pages increasing the penalties for battery against many different classes of people. If you batter a police officer or a fire fighter or several other governmental officials, the normal punishment of 6 months is doubled to one year. Again, you must remember, we are talking about misdemeanor batteries. If the injuries are serious, these crimes become felonies with a complicated matrix of punishments depending upon the victim, the nature and extent of the injuries and other factors, such as where the battery is committed.

Section 243(d) provides that a battery committed against any person which causes serious bodily injury, the perpetrator may be charged as a felon with a maximum of 4 years in state prison. Domestic violence batteries are separately punished and are explained in other articles on this site.

There are also many levels of offensive touching. The law protects riders on public transportation differently from people just walking down the street. Sexual battery is a completely different subject. Victims who are disabled or medically incapacitated are protected by harsher penalties. The same conduct can be charged under several statutes, of varying maximum penalties, but the same conduct can only be punished once, regardless of the number of statues violated.

Unexpected Conseqences

One of the unexpected consequences of a conviction of either an assault or a battery is a 10 year prohibition against owning or possessing a firearm. There are certain exceptions however, as a general rule and since the exceptions are so rare, it should be considered an absolute.

If there is a misdemeanor assault where a motor vehicle is involved, the DMV suspends the license of the perpetrator. If the offense is a felony the suspension is for life. Obviously, this little side effect could have disastrous consequences, and since it is a collateral effect, there is no duty for the court or the District Attorney to warn the defendant. The good news is that unless a person is sentenced to prison, there is a chance that the offense can be reduced to a misdemeanor at the conclusion of the probationary period and then the driver’s license can be restored.

Most of us still have to work to earn a living. A conviction of even a misdemeanor assault can have devastating consequences. If an employer is aware that a prospective employee has a conviction of assault and that employee later assaults another employee, a clever lawyer may attempt and may succeed to hold the employer liable for any actions of the convicted assaulter which result in harm to another employee. How many employers are willing to take that chance. There are a variety of offenses which can be overlooked and explained away. Assault requires explanation. There is a big difference between an assault which is a one time reaction to a once in a lifetime situation and a routine personality disorder. Today’s employers are ever mindful of legal liabilities and lawsuits which can destroy a company.

What Can a Lawyer Do?

In any case when you are charged with assaultive behavior the earliest intervention of a lawyer can be helpful in reducing, mitigating or even dismissing the charges. Unless the offense is a felony, there is a possibility that the case may be settled under sections 1377 & 1378 of the Penal Code. These sections are commonly referred to as civil compromise. In order to effectuate a civil compromise you must get the approval of the court, but the concurrence of the prosecutor is not necessary. Obviously, in order to get the court to sign off on a civ. comp. (term of art) the court must be satisfied that the victim is on board and it is not necessary for the victim to explain his or her reasons. Courts are deferential to victims. The trick is to get the victim on board.

It is a cardinal rule for the defendant to not approach or contact the victim under any circumstances. Under no circumstances should the defendant contact the victim. No contact of the victim is permitted by the defendant. I’m not sure how many times I can repeat this before someone gets it, but I have said this in my office, yelled it in my office, written it in my office and have done the same over the phone and yet, somehow, defendants think that my words are not meant for them, because they are special. This specialty sometimes gets them charged with witness intimidation. It’s never a good idea to add additional charges exposing the defendant to additional penalties which could be felonies.

A lawyer is always permitted to contact victims and should be aware of the parameters of the permissible bounds of contacts and suggestions. Civ Comp’s are mostly used in minor property offenses such as hit and run or vandalism, but can be used in assault cases unless they are felonies.

Getting back to the opening definitions, in order to commit assault you must attempt unlawfully to commit a battery. Just because you do the actions which constitute assault, you must do so unlawfully. For example, if someone raises his hand to waive at you and you reasonably believe that you are about to be struck, you have the right to protect yourself, even if the intention of the person you assault has no intention of harming you. You don’t have to be right, you simply have to be reasonable. A lawyer should know if there is a viable defense to the charge.

Sometimes a defendant’s previous conduct will be admitted into evidence to show that the defendant had good moral character, with a history and reputation for non-violence. In order to do this properly, a completely open an honest discussion of all past incidents must be had between lawyer and client. The effort to paint the defendant as a saint, who doesn’t have a violent bone in his body and wouldn’t harm a fly, crumbles like a house of cards if the prosecutor is able to present evidence of an act of violence in the defendant’s past. The good news is that if a defendant truly has a reputation for non-violence, the court will instruct a jury that the defendant’s character alone is sufficient to raise a reasonable doubt as to the truth of the charge. This is a very powerful instruction and tool, but reputation evidence is highly technical and is permitted only when all the legal requirements are met.

Contacting an Experienced Assault and Battery Attorney Near Me

In an assault case, unlike a sexual offense where evidence is permitted to be presented to show that the defendant had a propensity of commit the crime, or unlike in many theft cases, where evidence is allowed to show common plan, scheme or design to commit the crime, the defendant’s character or past actions will not come into jury view unless the defendant raises the issue. Whether or not to raise the issue is best determined by an experienced lawyer, a truthful and open defendant who trusts that lawyer and full and complete interviews of everyone that is going to be relied on to bolster the defendant’s assertion of his innocence. It should be recognized here that a jury never finds a defendant innocent. The best a jury can do is find the defendant not guilty. It doesn’t matter if they do so because they don’t believe the evidence at all or they don’t believe it is sufficient to prove the defendant was guilty beyond a reasonable doubt. But a careful, experienced lawyer will know that in spite of the idealistic platitudes, a jury wants to know what happened and has to be dragged into believing that the defendant could be guilty but the proof is insufficient.

The difference between the theoretical and the realistic is learned after years of experience with juries and prosecutors. This is not to tell you to hire the oldest lawyer in town, but there are some lessons which take years to learn.

To schedule a free consultation with our Long Beach criminal lawyer, it’s as simple as picking up the phone, calling 562-437-6418 and then finding an hour or so to come in to discuss the details of your case. Experience matters and an in-depth knowledge of the legal system and the Long Beach court system does as well, that’s why my clients choose the Law Office of Richard L. Poland.