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In California, assault and battery are often tied together, although the offenses are often misconstrued by both the alleged victim and law enforcement officers. However, the two crimes are quite different from one another and it is important that anexperienced criminal defense attorney correctly articulate the facts of your case in the court room. The primary difference between the two crimes is that assault does not involve physical contact – it only involves an intentional attempt to physically injure another or a threatening statement. Battery requires a person to use intentional and unlawful force against another person. Both crimes may be charged as misdemeanor or felony offenses depending on the facts of the case. If you've been charged with assault or battery, contact our San Jose Assault Lawyer today.

Assault 

California law differentiates between different types of assault, depending on the intended victim. While mere threatening words alone are not enough to lead to an assault charge, an arrest may be brought if there is proof that the defendant's actions show the intent to carry out the threat. Assault charges against protected classes of people, such as doctors, firefighters, or public transit workers, often lead to higher penalties since the defendant should know that the victim was in the course performing his duties.

Misdemeanor Assault - Penal Code section 240

Generally, in order for the prosecution to prove a misdemeanor assault in violation of Penal Code section 240, the People need to prove the elements below.  An example of an assault is throwing a punch at someone that misses. 

1. The defendant did an act that by its nature would directly and

probably result in the application of force to a person;

2. The defendant did that act willfully;

3. When the defendant acted, (he/she) was aware of facts that

would lead a reasonable person to realize that (his/her) act by its

nature would directly and probably result in the application of

force to someone;

[AND]

4. When the defendant acted, (he/she) had the present ability to

apply force to a person(;/.)

<Give element 5 when instructing on self-defense or defense of another.>

[AND

5. The defendant did not act in self-defense or defense of another.

Felony Assault - Penal Code section 245

There are generally two kinds of felony assault.  There is a serious felony, i.e., Strike Offense, kind of assault, called Assault with a Deadly Weapon.  And, there is a non-strike kind of assault called Assault by Force Likely To Produce Great Bodily Injury.  

In order for the prosecution to prove a felony assault, the prosecution needs to prove that:

<Alternative 1A—force with weapon>

[1. The defendant did an act with (a deadly weapon other than a

firearm/a firearm/a semiautomatic firearm/a machine gun/an

assault weapon/a .50 BMG rifle) that by its nature would directly

and probably result in the application of force to a person;]

<Alternative 1B—force without weapon>

[1A. The defendant did an act that by its nature would directly and

probably result in the application of force to a person, and

1B. The force used was likely to produce great bodily injury;]

2. The defendant did that act willfully;

3. When the defendant acted, (he/she) was aware of facts that

would lead a reasonable person to realize that (his/her) act by its

nature would directly and probably result in the application of

force to someone;

[AND]

4. When the defendant acted, (he/she) had the present ability to

apply force (likely to produce great bodily injury/with a deadly

weapon other than a firearm/with a firearm/with a

semiautomatic firearm/with a machine gun/with an assault

weapon/with a .50 BMG rifle) to a person(;/.)

<Give element 5 when instructing on self-defense or defense of another.>

[AND

5. The defendant did not act (in self-defense/ [or] in defense of

someone else).]

However, some fun defense facts for you to know are that "an assault may not be grounded on an intent only to frighten."  (People v. Vidaurri, (1980) 103 Cal.App.3d 450.) Instead, the defendant must have attempted to inflict violent injury upon the victim in order to be found guilty.  (Id.)  For criminal defense lawyers, brandishing a weapon in violation of Penal Code section 417 is not a lesser included offense of Penal Code section 245. (People v. Puckett, (1975) 44 Cal.App.3d 607, 614.)  

Also, in order to determine whether an object is a deadly weapon within the meaning of Penal Code section 245, one must look to the manner of use of the object to conclude that it was used as a deadly weapon.  (People v. Brown, (2012) 210 Cal.App.4th 1, 6-7.)  A knife is likely a dirk or a dagger under Penal Code section 16470 and therefore an knife may likely be a deadly weapon within the meaning of Penal Code section 245.  

Battery 

Battery offenses often occur after a fight between two individuals, although the crime requires direct physical contact. This physical contact may be evidenced through a punch to the face, or even a small push. Battery may also be accomplished by causing injury to a person by throwing an item at the person. Similar to assault, battery against certain individuals will lead to heightened penalties if the defendant should have been aware that the alleged victim was engaged in the performance of his duties. Additionally, punishment ranges may be heightened if the alleged victim was a member of the defendant's family (which may lead to domestic violence charges) or the alleged victim was an elderly person (which could lead to elder crime charges).  

Battery is a misdemeanor offense in violation of Penal Code section 242 if no serious bodily injury occurs.  Battery is a felony in violation of Penal Code section 243(d) if serious bodily injury occurs.  It is also a Strike Offense within the meaning of California Penal Code section 1192.7 if the defendant personally inflicted the serious bodily injury, i.e., as opposed to being just an aider or abettor.  (People v. Bueno, (2006) 143 Cal.App.4th 1503.)  Serious bodily injury means "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement."  (Cal. Pen. Code section 243(f)(4).)

Assault and Battery Penalties and Defenses

Assault and battery are both “general intent” crimes. This means that an accidental touching will not rise to the level of a battery charge, even though the individual may have accidentally injured or touched the alleged victim.

Assault and battery could be brought as either misdemeanor or felony offenses, depending on the gravity of the offense and the identity of the alleged victim which is why it's so important to hire an experienced San Jose assault lawyer. If the assault or battery was part of a larger crime, the defendant may face additional penalty ranges. Additionally, the defendant may be subject to enhanced punishment ranges if they have previously been convicted of other misdemeanor or felony offenses. Depending on the facts of the case, a defendant may only face probation and restitution to the victim, rather than prison time. However, an experienced San Jose battery attorney will be able to better assist you in determining the penalty ranges you may face in your individual case, and what defenses can protect your interests.

Ahmed and Sukaram | San Jose Assault Lawyer

If you have been charged with the offense of assault or battery in California, do not hesitate to contact the attorneys of Ahmed and Sukaram. Our attorneys have years of experience in handling assault and battery cases and will work tirelessly to protect your interests. Contact our San Jose office today for your initial free consultation.

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SHARI SUKARAM

Partner Shari Sukaram is a tough, knowledgeable and passionate advocate for her juvenile delinquency clients. In 2011 Shari Sukaram became a nationally published author. She is a strong believer that children, even those who make mistakes, have a golden opportunity to achieve their dreams if they are given a chance, shown that they should believe in themselves and put on the proper path.

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NAFIZ AHMED

Attorney Nafiz Ahmed has successfully defended over 2,500 criminal clients. A true trial attorney, his unique love of the law guides him in successfully defending his client's cases in ways that other attorneys cannot. Nafiz was voted a 2012, 2013 and 2014 Super Lawyer Rising Star® (2012 - 2016), and is a twice nationally published author in DUI defense strategies. He speaks Spanish and is committed to serving clients of all backgrounds.

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