Battery, in simplest terms, is a crime where force or violence is inflicted on one person by another. Battery is outlawed under various provisions of the California Penal Code. The crime of battery can be as simple as touching someone in an offensive manner, or it can result from something more severe, such as a punch to the face or beating someone until they lose consciousness.

You have likely already heard the term "assault and battery." While assault and battery tend to go hand-in-hand, they are actually different crimes, with different penalties. It is possible to commit a battery without committing an assault, and vice-versa.

The manner in which this crime is charged will depend, as many crimes do, on the facts and circumstances surrounding it. In addition to being a crime, battery is also a civil wrong; meaning a person who commits a battery can be sued by the victim in civil court, as well as being prosecuted in a criminal court.  

What is Battery:

The crime of battery is defined in California Penal Code section 242 as an unlawful and willful use of either force or violence on another person. This is the most basic definition of the crime, and is generally referred to as simple battery. This basic form of battery is generally treated as a misdemeanor; with less substantial penalties than other iterations of the crime.

Some examples of simple battery are:

  1. Punching someone in the face;
  2. Throwing a water bottle at someone, hitting them;
  3. Pushing someone to the ground;
  4. Shoving someone out of your way; and
  5. Touching someone in their bikini area.

Of these examples, all but the last can easily be understood as a battery, as the use of "violence" or "force" is obvious. The last example, touching someone in their bikini area, stands out, as it does not appear to involve either force or violence. In fact, while the definition of battery appears to require the use of either force or violence; California courts have interpreted the statute to include acts that result in merely touching a person, if that touching is offensive, unwanted or rude.   

Any unwanted physical contact that was done willfully constitutes a battery, even if it does not result in any injury. It often accompanies the charge of Penal Code section 240, assault, which is a threatened battery with the ability to carry it out.

Battery does not require an injury to sustain a charge. A battery that causes a serious injury can be charged under Penal Code 243(d), battery causing serious bodily injury, a more serious charge.

Here are some other, more illustrative examples of battery:

Pete is related to a defendant in a criminal case.  Jim is the brother of someone injured by the defendant.  Pete and Jim are both at the courthouse to witness the court hearing.  After the hearing, Jim confronts Pete is the hallway of the courthouse and begins pushing Pete.  Although it was just a push, Jim is guilty of a battery since the action involves an unwanted touching of Pete.

Joe and Bill square off and exchange angry words while in a bar.  Joe does not physically touch Bill, but instead Joe spits on Bill.  Although Joe has not touched Bill with a part of his body, Joe is still guilty of battery in that he has touched Joe with his bodily fluid.

Susie grabs Tom’s shirt and spins him around by holding his shirt.  Although Susie has never touched Tom, she has touched something connected to his person, so she is guilty of a battery. 

How Does Battery Differ From the Crime of Assault:

Whether in conversation, a news report or a popular television show, you have probably heard the term "assault and battery" at least once. While it may sound like a single criminal act, in fact, they are separate and distinct, though closely related.

Battery is the act of physically touching another person with force or violence, or in an offensive manner. Assault, on the other hand, occurs when a person engages in an act which has the potential to result in a battery. At first glance, it may seem unnecessary to treat assault and battery as separate crimes, but upon closer inspection, the importance of treating them separately becomes clear.

Consider this example. Let's say a person is holding a hammer and arguing with someone else. The argument becomes heated, and the person holding the hammer throws it at the other but misses. Should the law excuse a violent and potentially deadly act, simply because the other person wasn't injured? Of course not, the person who threw the hammer should be prosecuted for what they did, they committed an assault.

Now, let's say the situation repeats itself, except this time the person holding the hammer does not miss; the second person is struck and injured. In the first case where nobody was hit with a flying hammer, the harm was much less than the second case where the person was hit with the hammer and injured. Should the law treat both cases the same? Of course not, the case where someone was actually injured should be treated more severely. In that case the person who threw the hammer committed both an assault and a battery.

In simplest terms, the law treats assault and battery as two separate crimes because an attempt to hurt someone should not be excused, but the law recognizes that an attempt to hurt someone, coupled with succeeding in that attempt, should receive a more severe punishment.

How Does a Prosecutor Prove Battery:

To prove that the defendant is guilty of battery under Penal Code Section 242, the prosecution must prove the following facts or elements:

(1) An act, which results in the physical touching of another person;

(2) The act which resulted in a person being touched was intentional or willful; and

(3) The touching of the other person was offensive or harmful.

As with a majority of crimes, battery requires the prosecution to prove an element of intent, the legal term for which is mens rea. This means that, generally, an accident (such as dropping a large book on a person's foot) will not constitute battery, and will not typically be prosecuted. 

Aggravating Circumstances:

Simple battery is usually treated as a misdemeanor, and carries less severe penalties that the more serious class of crimes known as felonies. However, there are certain circumstances where a conviction for battery will carry more severe penalties, and may be prosecuted as a felony. These are known as aggravating circumstances.  

There are three basic types of aggravating circumstances for the crime of battery.

The first type deals with the nature of the victim of the battery. If the victim is a police officer, firefighter, corrections officer, EMT, traffic officer, teacher, or any similar public service profession, while that person is engaged in performing their duties; more severe penalties can be imposed for battery.

Second, a criminal charge for battery will be treated more severely if the crime results in "serious bodily injury" to the victim, more severe penalties will likely be imposed. This aggravating circumstance does not look at the nature of the victim, but rather the nature of the battery itself, and the effect it had on the victim.

Finally, and again focusing on the nature of the victim, when the victim of a battery is a spouse, boyfriend, girlfriend, ex-spouse, ex-boyfriend, ex-girlfriend, etc.; more severe penalties will be imposed. This is generally referred to as domestic violence.      


As mentioned earlier, simple battery is a misdemeanor. If, however, one or more aggravating circumstances are implicated, the battery may be charged as either a misdemeanor or a felony. Specifically, battery committed on a public servant engaging in the performance of their duties, resulting in injury; and a battery resulting in serious bodily injury, can be charged as felonies. Domestic violence will generally be charged as a misdemeanor (absent additional aggravating circumstances) but carries with it additional penalties and conditions.

A misdemeanor "simple" battery can result in the following penalties:

(1) 3 years’ Summary probation;

(2) Up to six monnths in county jail; and/or

(3) A fine of up to two thousand dollars ($2,000.)

A misdemeanor battery on a public servant (not resulting in injury) can carry the following penalties:

(1) 3 years’ Summary probation;

(2) Up to one year county jail; and/or

(3) A fine of up to two thousand dollars ($2,000.)

A felony battery on a public servant (resulting in injury) can carry the following penalties:

(1) 5 years’ Formal probation;

(2) Up to three (3) years in county jail or prison; and/or

(3) A fine of up to ten thousand dollars ($10,000.)

A felony battery, resulting in serious bodily injury can carry the following penalties:

(1) 5 years Formal probation;

(2) Two (2), three (3) or four (4) years in state prison; and/or

(3) A fine of up to ten thousand dollars ($10,000.)

A misdemeanor domestic violence battery conviction can result in the following penalties:

(1) 3 years’ Summary probation;

(2) Up to one year in county jail; and/or

(3) A fine of up to two thousand dollars ($2,000.)

Additionally, if a person is convicted of a domestic violence battery, once granted probation, they must enroll and complete no less than one year of a batterer's treatment program (or other similar and suitable program,) and may be required to reimburse counseling costs and/or pay a fine of up to five thousand dollars ($5,000) to a battered women's shelter.  


Self-defense or Defense of Others:

A defendant who reasonably believes that they or someone else are likely to suffer physical harm by the actions of another person, and the level of force they use to avoid or prevent that harm is proportional to the threat they perceive; then the defendant can present that argument to defend themselves against prosecution for battery.

Lack of Intent:

A defendant who does not willfully or intentionally commit a battery can claim a lack of intent as a defense if they are prosecuted. Victim may misinterpret the actions of the defendant or not realize or understand that they were touched or harmed accidentally.

Parental Right to Discipline a Child:

Even in this day and age, parents still have the right to use "reasonable" physical force when disciplining their children. Parents may not, however, use any level of force that may be considered excessive. There is no bright-line rule for what constitutes reasonable force in child discipline. That must be determined from the facts and circumstances surrounding the use of force on the child.

Actual Case:

Omar became enraged when a neighbor continually would park in Omar’s parking space at the apartment complex.  One day, when the neighbor had stolen Omar’s space Omar tried and tried to get the car towed, to no avail.  Finally, Omar saw the neighbor leaving to his car.  Omar stopped the neighbor, confronted him, and then punched the neighbor in the face.  The punch left no mark and caused no injuries.  I gathered letters of recommendation from Omar’s employers and colleagues and had Omar attend anger management classes.  As a result, I was able to get Omar’s charges diverted and eventually get them dismissed when he completed the classes.

How We can Help:

Call me if you or a loved one is charged with any violent crime, such as assault and battery.  I, David Foos, have over 40 years’ experience defending people accused of crimes.  In addition, I served for 16 years as a Judicial Officer with the Sacramento Superior Court, sitting as a Judge on misdemeanor and other criminal matters.  Because of my experience, I have many contacts in the courts, and can use this experience, contacts, and knowledge, to provide to you the best and most effective possible defense.  I will diligently research the law regarding your case, and when helpful will employ my team of investigators and experts to provide necessary support in your matter.  I have a track record of proven positive results and will provide you with the best possible defense.  Call me, David Foos, at 916-779-3500, for a consultation at no cost to you.  I can also be contacted on the web at This email address is being protected from spambots. You need JavaScript enabled to view it..