California has complex laws that criminalize assault and battery. Penal Code 240 describes assault as the threat combined with the present ability to cause bodily harm. An assault perpetrator does not need to touch or harm the victim. The prosecution can obtain a conviction as long as the threatened person reasonably believes that the threat is credible. Battery, as described under Penal Code 242, involves the intentional and unlawful use of force or violence against a victim. Simply touching a person offensively constitutes battery even if the touch does not cause pain or injury. If you face charges for assault and battery in Sacramento, CA, we encourage you to contact Foos Gavin Law Firm for reliable legal counsel and representation.

If charged with issuing threats of bodily harm followed by the actual establishment of physical contact, the court can impose both a prison sentence and a fine. We can analyze the facts of your case to help you better understand the set charges. Most importantly, we can provide solid legal defense to ensure your case has the best possible outcome.

Assault Defined

Under Penal Code 240, assault is the “attempt” or “threat” to injure another person physically. In more straightforward terms, an assault is an attempted battery. You can be convicted of assault even if an incident does not cause actual injuries. The prosecution merely needs to establish that you posed a credible threat and your actions caused reasonable apprehension of imminent harm.

The prosecution must establish the following elements to prove you are guilty of assault:

  • You acted in a manner that, by nature, can result in the direct or potential application of force against the victim.
  • You acted intentionally
  • You knew that your actions would cause a reasonable person to fear the direct or probable application of force against them
  • You had the present ability to use force against your victim

The Act Requirement

Contact is not necessary to be convicted of assault. You can only violate assault laws by committing a criminal “act.” Acts of assault vary widely, although you must act directly to instill reasonable fear of imminent harm against the victim.

Verbal threats alone can be an offense, although they often do not constitute assault. The prosecution must prove that you intended to put the victim in a state of awareness or apprehension because you had the present ability to cause harm.

Some of the acts that can establish the act requirement include:

  • Mimicking the act of kicking, punching, or hitting
  • Pointing a gun at someone, irrespective of whether it is loaded or not
  • Brandishing a weapon to suggest you can physically harm the victim
  • Attempting to strike the victim but missing
  • Throwing objects at someone

Intent Requirement

General intent to commit assault differentiates accidents from criminal acts. The prosecution can establish a motive based on verbal threats. A defendant cannot fight assault charges by claiming that the threat was nothing but a joke.

Moreover, the law does not require you to intend to use force against a victim. You are guilty of assault as long as you knew that your actions had a good chance of causing the victim to be in reasonable apprehension of offensive, unwanted or harmful contact under the circumstances.

Simple Vs. Aggravated Assault

Simple assault is when an act causes apprehension of immediate physical harm. However, the threat causes minimal injuries or none. This crime carries misdemeanor penalties.

On the other hand, aggravated assault is an assault that causes serious bodily harm or poses the intent to commit a serious crime. For instance, when the perpetrator uses caustic chemicals to threaten the victim, the offense escalates to aggravated assault. For the crime to be “aggravated,” the perpetrator must demonstrate intent to inflict significant damage with no regard for the victim’s life.

Also, the prosecution will impose aggravated assault charges when a defendant uses a deadly weapon. The exact charges apply when you commit simple assault against a protected class of people like a peace officer or firefighter on duty.

Aggravated assault is a wobbler offense. When charged as a felony, it counts as a “Strike” crime under California’s Three Strikes Law.

Battery Defined 

Penal Code 242 defines battery as the willful act of touching another person offensively or harmfully and without their consent. The elements of the crime are as follows:

  • You touched the victim
  • You acted willfully or intentionally
  • Your touch was harmful or offensive

The prosecution can establish the element of touch as long as you make any direct or indirect physical contact with the victim. Even a slight touch or contact that does not cause injury constitutes battery as long as it was unwanted, unconsented, or offensive.

Moreover, you can be convicted of battery even if touch occurs indirectly by using an object within the victim’s immediate presence. For instance, the action of hitting a person’s hat off their head qualifies as battery. The same concept applies when you touch a victim through their clothing.

Act Requirement

In battery cases, the criminal “act” is to establish unwanted, offensive, or unconsented contact with the victim. Cases of battery do not necessarily involve physical attacks like kicking or punching. Even minimal and harmless contact like spitting on a person’s shows qualifies as battery.

Intent Requirement

Similar to assault, you can be convicted of battery even if you did not have the intent to harm the victim. The prosecution merely needs to establish that you “willfully” caused contact with another person, even if the touch involved patting them on the back. Consequently, an unintentional touch caused by bumping into someone or your melting ice cream accidentally spilling on their shoe cannot constitute a battery.

Simple Vs. Aggravated Battery

Simple battery attracts misdemeanor penalties. The crime involves an unwanted, unconsented, or offensive touch that causes minor injuries or none at all. A crime escalates into an aggravated battery if the defendant uses a deadly weapon or an incident results in serious physical injury or permanent disfigurement. Also, the prosecution will impose aggravated battery charges if the victim is a police officer, social worker, elderly person, or any other member of a protected class.

Is There A Difference Between Assault And Battery?

Assault and battery are closely related crimes, although they are pretty distinct. An assault is an “attempted” battery, while battery is the crime of unlawfully or offensively touching another person. The laws group assault and battery together mainly because the former involves a threat while the latter involves following through with a threat.

It is crucial to enlist an attorney whether you face assault or battery charges. Depending on the facts of a case, the prosecution can even impose both assault and battery charges. Either way, a skilled lawyer can help protect your rights and best interests to the fullest extent.

Penalties for assault and battery 

The penalty for assault and battery highly depends on the charges imposed by the prosecution. Simple battery is a misdemeanor, and the penalty is as follows:

  • Imprisonment in county jail for up to 6 months
  • A fine not exceeding $1,000

Simple assault is subject to an enhanced penalty when committed against a protected class of people. a conviction for assaulting a firefighter, police officer, or parking control officer on duty is punishable by:

  • A county jail sentence of up to 1 year
  • A $2,000 maximum fine

Aggravated assault involving a deadly weapon or other means likely to result in great bodily harm is a wobbler offense. When charged as a misdemeanor, it could attract the following penalty:

  • A maximum sentence of 1 year in county jail

A felony conviction for aggravated assault is punishable by:

  • 2, 3, or 4-year sentence in state prison

Simple battery is also a misdemeanor. If an incident does not cause severe bodily injury and the crime is not committed against a protected person, the penalty is as follows:

  • A county jail sentence of up to 6 months
  • A maximum fine of $2,000

Simple battery against a protected person is perceived as a greater offense. The punishment imposed is as follows:

  • Up to 1-year county jail sentence (when the victim suffers no injury)
  • 16 months, 2 or 3 years’ incarceration in state prison (if the victim is injured)

While simple battery is typically a misdemeanor, aggravated battery is a wobbler. The prosecution will decide whether to impose misdemeanor or felony charges depending on the degree of injuries inflicted on the victim, among other factors.

An aggravated battery conviction can attract the following penalties:

  • Up to one-year incarceration in county jail

If convicted of felony aggravated battery, the penalty will include:

  • 2, 3, or 4 years imprisonment in state prison

Best Defenses To Fight Assault And Battery Charges

Not all assault and battery cases are straightforward. Some are complex, and a criminal defense attorney could opt to focus on ensuring that the prosecution can establish all the elements of a crime beyond a reasonable doubt. This can be challenging, especially when the victim provoked a situation or was involved in a mutually heated exchange with the defendant.

Generally, the facts and circumstances of a case play a leading role in dictating the best defenses to use. Here are some of the best defenses a skilled lawyer can employ to battle assault and battery charges:

Lack of Intent

The prosecution must prove that you acted “willfully.” For instance, an accidental touch cannot constitute assault or battery, irrespective of how offensive it feels.

Lack of Present Ability to Use Force against the “Victim”

When fighting assault charges, the prosecution needs to establish that you had the present ability to use force or violence against the victim. Verbal threats alone cannot amount to assault if the defendant cannot follow through and inflict injury.

For instance, James is standing on the first-floor balcony. He looks down at Peter, who is in the parking lot, threatens to break his jaw, and even swings a fist towards him. Peter has no reason to fear immediate harm. James lacks the present ability to break his jaw with his fist.


One of the best ways to fight assault and battery charges is to claim you acted in self-defense. For the claim to yield an ideal outcome, you must prove a genuine basis for fear, no provocation on your part, and the use of reasonable force to protect yourself or another person and escape a potentially dangerous situation.

You must understand the limitations that come with the principle of self-defense. Even if you are defending yourself, this does not mean that you can use unjustifiable force. The force used must always be equivalent to the level of threat posed. You can still be convicted of assault and battery if you use excessive force.

Defense of Property

It is also justifiable to use reasonable force to protect your property. This is more so if someone trespasses into your home or retrieves an item from your direct possession. Whether this defense can lead to the dismissal of your charges depends on the exact facts presented.


Another excellent defense for assault and battery is that you had the victim’s consent. A person who agrees to play a contact sport, for instance, gives implied consent of touch. Regardless of how offensive it feels, any contact cannot qualify as assault or battery.

For example, Chris and Craig are jumping on a trampoline. Jane asks whether she can join them, and they agree. They all enjoy the game until Chris and Craig jump with excessive force, making Jane bounce out of the trampoline. Even though Jane hurt her knee, she is not a victim of battery. She had given her consent, and the falling was a foreseeable hazard of the game.

False Accusations 

A physical injury is not required for someone to accuse you of assault or battery. An alleged victim can still claim a crime happened, even if they have no physical proof. It could be that the allegations are based on jealousy, anger, or vengeance.

 A competent attorney can investigate the issue to unveil evidence that can work in your favor. The expert can also call witnesses to give their accounts of what happened. Another strategy that could work is calling close friends or relatives to describe the character of the victim or their relationship with the defendant. This can help raise doubt about the occurrence of an incident and possibly have the charges dropped, or the defendant acquitted.

Related Offenses

Assault and battery cases are complex. Often, they involve numerous tiny details that can quickly escalate the charges or leave a defendant facing penalties for more than one conviction. Some of the crimes related to assault and battery include:

Assault With a Deadly Weapon (ADW) — Penal Code 245(a)(1) 

Under Penal Code 245(a)(1), it is an offense to commit assault using a deadly weapon. The term “deadly weapon” refers to anything that can cause serious bodily harm, like a gun or knife.

The prosecution must prove the following elements to obtain a conviction:

  • You acted in a manner that, by nature, can cause the direct or probable application of force against another person
  • You acted using a deadly weapon or used force likely to result in great bodily harm
  • You acted deliberately or willfully
  • You knew that your actions would cause any reasonable person to have the apprehension of direct or probable force being applied against them
  • You had the present ability to apply force with the lethal weapon or use force likely to cause severe injuries

The presence of injuries is not an element the prosecution has to establish to convict you. Even if you used deadly force by throwing a knife that misses your target, you could still be convicted of assault with a deadly weapon. 

Violating Penal Code 245(a)(1) can attract misdemeanor or felony charges depending on the specifics of a case. A misdemeanor conviction is punishable by:

  • Prison time in county jail for one year maximum
  • A fine not exceeding $1,000

If the prosecution imposes felony charges, the penalty will include:

  • Up to 4 years’ incarceration in state prison
  • A fine of $10,000 maximum

The penalty for assault with a deadly weapon increases substantially when the accused uses a deadly weapon or the victim falls under the classification of protected people. 

The prosecution can still impose misdemeanor charges when the accused uses a typical gun like a pistol. The offense will attract the penalties mentioned above, only that the accused must serve a 6-month minimum sentence. 

When the weapon used is a machine gun, .50 BMG rifle, or semiautomatic firearm, the prosecution will impose felony charges. A conviction is punishable by:

  • Up to 12 years’ incarceration in state prison

Moreover, assault with a deadly weapon is always a felony if the victim is a firefighter, police officer, or protected person. The typical penalty when the weapon involved is a firearm is 12-year imprisonment in state prison.

 If the accused used any other weapon, the punishment will include:

  • A sentence of up to 5 years in state prison

Disturbing the Peace — Penal Code 415

Penal Code 415 makes it a crime to “disturb the peace.” You can commit this crime by playing loud music, fighting in public, or hurling offensive words at another person. 

With the help of a skilled attorney, you can have assault and battery charges reduced to disturbing the peace. This is possible if you and the “victim” were in a mutually heated argument or fight that did not lead to any significant injuries. 

Violating Penal Code 415 is a wobblette offense, meaning it can attract a noncriminal infraction or misdemeanor charge. The prosecution will consider the facts of a case and a defendant’s criminal past before deciding the charges to impose.

The maximum punishment for disturbing the peace includes:

  • A maximum jail sentence of 90 days
  • A fine not exceeding $400

Assault With Caustic Chemicals — Penal Code 244 

Most assaults are wobbler offenses. However, assault with caustic chemicals is a felony. Under Penal Code 244, the crime is described as the throwing or placing of caustic chemicals or flammable substances on another person with the motive to injure or disfigure them.

Caustic chemicals refer to substances that can corrode living tissue. The substances can burn mucus membranes, flesh, eyes, and the skin. Among the most common caustic chemicals are hydrated sulfates and sulfuric acids. Corrosive chemicals are substances like oxidizers, bases, and acids that can damage, destroy or disfigure living tissue on contact.

On the other hand, flammable substances are liquids that easily burst into flames. They have a flashpoint of 150° Fahrenheit maximum, whereas substances like gasoline with a -49°F flashpoint are the most flammable.

The prosecution must prove the following elements beyond a reasonable doubt to convict you of assault with caustic chemicals:

  • You intentionally and maliciously
  • Placed, threw, or ordered the placing or throwing
  • Of a caustic chemical, flammable or corrosive substance onto another person
  • You intended to injure your victim or disfigure them

An assault conviction under Penal Code 240 attracts the following felony penalties:

  • 2, 3, or 4 years’ incarceration in state prison
  • A $10,000 maximum fine

The definitions of assault and battery are pretty broad. One seemingly innocent action can quickly leave you facing charges under several Penal Codes. Often, the prosecution does not take likely even “attempts” to cause injury to another person. It is imperative to seek legal counsel from an experienced criminal defense attorney. At the very least, the expert can fight to have your charges reduced to a minor offense like disturbing the peace.

Find a Criminal Defense Attorney Near Me

An assault and battery conviction can negatively impact your personal and professional life. It is crucial to consult with a knowledgeable lawyer who can study your case and dispense invaluable legal guidance. Before you confess to a crime or even plead guilty, you first need to be aware of your legal options. Foos Gavin Law Firm has a trusted team of attorneys who can help you fight the charges and achieve the best possible outcome. If you have been arrested in Sacramento, CA, call us at 916-779-3500 for a free and confidential consultation.