Assault & Battery

Assault & Battery Defense Attorney

If you have been charged with battery, assault, making terroristic threats, or other related charges, you should consult with an experienced and aggressive criminal defense attorney immediately. Oliver Cleary has the skill and perseverance to provide the aggressive defense that you need.

Assault and Battery Laws

In criminal law, assault and battery are often viewed as a unified offense. Historically, laws treated the threat of physical injury as “assault”, and the completed act of physical contact or offensive touching as “battery,” but many states no longer differentiate between the two. In most states, an assault and battery is committed when one person attempts to or does physically strike another person, or acts in a threatening manner which puts them in fear of immediate harm. Several states declare that a more serious or “aggravated” assault/battery occurs when a person attempts to or causes serious bodily injury to another, or causes injury or commits an assault with the use of a deadly weapon.

  • Assault with serious bodily injury – California Penal Code Section 243(d)
  • Assault with force likely to cause great bodily injury or assault with a deadly weapon – California Penal Code Section 245(a)(1) or (a)(2)
  • Enhancement of assault charges – Penal Code Section 12022.5 et seq. A defendant’s sentence is enhanced if the crime is committed with the use of a firearm. Penal Code Section 12022.53 can result in a sentence of 10 years, 20 years, or life imprisonment.

“Assault” can be separate from “battery” where assault is seen as an act that creates the fear of an immediate battery and the battery is the act of unlawful touching. Wrongful touching doesn’t need to inflict physical injuries and can be indirect such as throwing an object or spitting on someone. You could even possibly be liable for assault for pointing a toy gun at someone, where there was no ability to inflict physical harm. In criminal law, assault and battery can be prosecuted as either a misdemeanor or a felony—depending upon the nature and seriousness of any injuries or the offense itself.

  • Assault: Assault is the threat of violence upon another person. A person need not be injured to be the victim of an assault. Words alone usually don’t constitute an assault. There must also be action and intent behind the words. However, a charge of Terrorist threats (Penal Code section 422) can be an exception to this rule.
  • Battery: Battery is any offensive touching. A slap, grab, or bumping can constitute a battery if the act is done with the intent to commit the battery. If an assault occurs by the use of a gun, knife, car, or any object used as a weapon (hands, feet, pool cue, chair leg, telephone receiver, shoe, etc.), the crime may be charged as a felony assault with a deadly weapon.

Defenses to Assault and Battery

  • Self-Defense: If a “reasonable person” in similar circumstances would feel threatened by an attack, that person may use all force reasonably necessary to prevent injury. An act of self-defense must ordinarily be proportional to the threat. If you believe a person is going to spit on you, depending upon the context it may be reasonable to push the person away, but it would not be reasonable to hit the person with a hammer.
  • Defense of Others: Defense of others is similar to self-defense, and usually occurs in the context of one family member or friend protecting another. Some jurisdictions permit a defendant to assert defense of others, even where the defendant is mistaken as to the existence of a threat, as long as the mistake is reasonable. Other jurisdictions don’t permit this defense unless there was an actual threat or battery against the other person.
  • Voluntary (Mutual) Combat: When an individual voluntarily engages in a fight with another person for the sake of fighting and not as a means of self-defense, there is no right to claim self-defense. If two people voluntarily enter a brawl, it is unlikely that either will be able to claim self-defense. However, if for example one falls, and the other takes advantage of the situation by kicking him and causing injury, that act may well be considered to be unlawful use of force which would support criminal charges.
  • Defense of Property: Many jurisdictions allow the use of some amount of threat or force by a person who is seeking to protect his own property from theft or damage. In most jurisdictions, there is no privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury. There are some jurisdictions with extraordinarily broad laws, permitting the use of significant and even deadly force to defend the safety of one’s home. Mr. Cleary can further explain these laws.
  • Consent: When a defendant has the other person’s consent to commit an act of assault or battery, the defendant may not be culpable. For example, consent exists in the context of authorized medical or surgical procedures. Another typical realm for consent occurs in sports. The intentional foul in basketball, the football tackle, and the hockey check are anticipated parts of the game. It is possible for some conduct to be so far outside of what is reasonable, it can give rise to criminal charges—for example, intentionally hitting a player in the head with a hockey stick, an action that could cause serious and perhaps crippling injury or death. But in most instances rule violations are part of standard play and unlikely to support criminal charges.
  • Police Conduct: Police officers are privileged to apply the threat of or actual force, if necessary to affect a lawful arrest. An injury sustained as the result of reasonable force exerted by the police to affect a lawful arrest is not grounds for criminal charges. However, if excessive force is employed by the officer, this can provide a defense to charges of battery on an officer or resisting arrest (Penal Code Section 243(b), 243(c) or 148.)
  • Provocation: Words alone, no matter how insulting or provocative, don’t justify an assault or battery against the person who utters the words. However, provocation may be a basis to mitigate a murder charge to voluntary manslaughter.