Misdemenor Simple Assault and Battery

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While the terms "Assault and Battery" are often used together they are distinct criminal offenses. Both also can appear with another more serious offenses such as an assault with a deadly weapon.

Section 240 of the Penal Code "Assault"
  1. An assault is an unlawful attempt, combined with a present ability, to do violent injury to the person of another. 1
  2. In order to commit an assault a person need only attempt to use unlawful physical force against the person of another. 2
"Attempt" versus the Attempted Commission of a Criminal Act

perseus confronting phineus with the head of medusa "Attempt" under section 240 is somewhat different than when it is use with other criminal acts. The term is used often where a person is alleged to have "attempted the commission" of a criminal act, for example attempted murder.

An attempt to use physical force against another in section 240 requires more than the mere preparation to commit a crime which is all that is necessary to show in an "attempt" to commit most criminal offenses.

The attempt as used under section 240 must immediately proceed the act contemplated (unlawful forceful touching) and usually at the same location and in the presence of the person who the force is intended to be used against. While an act constituting an attempt to commit a criminal offense may be much more remote in time, and in a place where the intended victim is not present. 3

Section 242 of the Penal Code "Battery"

A battery is the wilful and unlawful use of force or violence against the person of another. 4

While a battery requires the unlawful use of force or violence against another person, the force inflicted need only be "the least touching."

Contrary to the common understanding of the term "violence," the force used in a battery need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark. When describing the acts constituting battery, "violence" and "physical force" are used interchangeably. 5

Mental State

The mental state required for battery is the same as cyclops polyphemus that required for assault, there must be an intentional act, with the knowledge that the act will probably, and does in fact result in the use of physical force against another person. Every battery includes an assault. A defendant charged with assault may be convicted of that charge even though the evidence shows an actual battery. In other words an assault is the first element or stage of the commission of a battery. If the forceful touching occurs it is a battery, if not then it constitutes an assault. 6

The punishment for simple assault or battery is that imposed for a general misdemeanor which is imprisonment in a county jail for up to 6 months, a fine of up to $2,000 ($1,000 if an assault), or both.

An assault or battery often can be elevated to a felony when coupled with another offense. Assault and battery are offenses considered to be the cornerstones of those misdemeanor crimes involving violence contained in the Penal Code. 7

1 Section 240 of the California Penal Code; People v. Parson (2008) 44 C.4th 332, 349

2 People v. Colantuono (1994) 7 C.4th 206

3 People v. Colantuono [supra]

4 Section 242 of the California Penal Code; People v. Helbing (1882) 61 C. 620, 622; People v. Duchon (1958) 165 C.A.2d 690, 693.

5 Section 242 of the California Penal Code; People v. Bradbury (1907) 151 C. 675, 676

6 People v. Heise (1933) 217 C. 671, 673.

7 Section 243(a) of the California Penal Code