In San Diego, the crime of Battery is defined by two separate sections in the California Penal Code. The definition of Battery is set forth in Penal Code Section 242 which states:
Battery is any willful and unlawful use of force or violence upon the person of another.
The punishments allowed for a Battery are set forth in Penal Code Section 243 which states in relevant part:
a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.
b) When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, and the person committing the offense knows or reasonably should know that the victim is such a person the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
c) (1) When a battery is committed against an individual mentioned in section (b) and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years.
d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years.
e) (1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiance, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program.
(2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(a) That the defendant make payments to a battered women’s shelter, up to a maximum of five thousand dollars ($5,000).
(b) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.
(3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision and sentenced under paragraph (1), the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence.
(4) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society’s condemnation for these crimes of violence upon victims with whom a close relationship has been formed.
While the crimes of assault and battery are generally charged together, they are two separate crimes with easily distinguishable criteria. Assault occurs in one of two ways; either when an individual willfully acts in manner the places another individual in reasonable fear of harm or attempts to harm an individual and fails. Battery occurs when an individual willfully acts in a manner that actually results in harm or unwanted touching. Thus, if the prosecution has valid reason to charge an individual with battery, they will necessarily have reason to charge them with assault as well.
In order to successfully convict an individual for battery the prosecution must prove every element required by PC § 242. Therefore it must be shown that the conduct (1) was willful, (2) constituted force or violence, (3) upon the person of another.
With regards to the element of willful intent, it is not necessary that you intended to harm the victim. Battery can be committed intentionally or recklessly in that it is only necessary that you intended to commit the act that may have inadvertently harmed the victim. Throwing a bottle at an inanimate object that actually ends up hitting the victim will satisfy the requirement for willful intent required under this section. The requirements of force and violence upon the person of another are defined very broadly by courts in California. For the purposes of convicting and sentencing under this section, any unwanted touching of a person or an object connected to the person whatsoever will constitute “force or violence upon the person of another”. The classic example is spitting on an individual even though there is no actual physical harm or violence. Crashing into another’s vehicle with your own could constitute battery as well. Even the most minimum contact such grabbing the collar of a dog leashed to the owner will be a battery on the owner the same as hitting them in the knee with a baseball bat. The severity of punishment, however, will be drastically different in these situations and will be largely dependent on the unique specifics of each case.
A battery on an individual resulting in minimal harm to the victim will be charged as a misdemeanor and met with a fine not exceeding $2000 and/or imprisonment in county jail not exceeding 6 months. With the help of an experienced and skilled defense attorney, it is likely in these situations that an individual with a clean record will receive a misdemeanor charge, a small fine, informal probation, and an opportunity to have the charge completely expunged from their record once the terms of probation are satisfied.
However, the law takes much more seriously more severe instances of assault and battery committed by individuals with criminal history. PC § 243 allows for enhanced sentencing when the circumstances of the battery are more severe. If the victim is an officer of the law or other public servant mentioned under this section, the penalty could increase from 6 months to 3 years in state prison. If the victim of the battery is seriously injured by the offensive contact, the battery could be charged as a felony and sentencing could increase to up to 4 years in state prison. Penal Code § 12022.7 distinguishes various groups and provides for greater and additional sentencing enhancements 3, 5 or 6 years for infliction of great bodily injury on individuals such as the elderly or children. Also, under PC § 243(d), if the battery causing serious bodily injury is charged as a felony, it will be considered a violent felony and counted as a strike under California Three Strikes Laws. A second strike will result in double minimum sentencing, and a third will result in life imprisonment. If the battery is committed with the use of a deadly weapon, which courts recognize as virtually any item used to attack another, the crime may also be charged as a violent felony and a strike as well. (Please See “Assault with Deadly Weapon; Penal Code 245” for more information) If the battery is inflicted on a domestic partner, which under PC § 243(e) includes any individual you currently or once had even a short lived dating relationship with, on the first offense sentencing can include a fine of $2000, a year in jail, treatment programs, mandatory payments to domestic abuse organizations, and restitution to the victim for costs of counseling. If it is second offense of this subsection on a domestic partner, the court may order a mandatory two days in jail in addition to the sentencing above.
Unfortunately, far too often an individual is arrested and charged with battery simply because they were the victor in a fight that they did not start. Police generally arrive only after the attacker has been subdued. Without proper witness testimony by those that who actually saw the fight, an individual who was simply protecting themselves or others may look like the aggressor. A diligent investigation into the character and reputation of the alleged victim by your defense counsel could reveal crucial information as to a history of aggressive behavior which could be incredibly valuable to the court in determining whether your conduct was malicious or in defense of yourself or others. Under California law, you have the right of self defense or to defend another if you have a reasonable belief that you or another are in danger. Thus, if the alleged victim appears to be attacking you or even a stranger, you have the legal right to use reasonable force upon the alleged victim to prevent such harm from occurring.
It could also be the case that you did not have the intentional or reckless intent necessary to be prosecuted under this section. If you are not driving recklessly, for example, and run into a person by accident, you may not be property convicted for battery.
Finally, a reasonable belief that you had consent of the victim to use such force upon them, in a mutual contact sport for example, will be a defense as well. If this is the case, it’s best to disclose any information about implied or explicit consent to your battery lawyer early in the process of formulating a legal defense.
Given the severity and broad range of sentencing under Penal Code § 242 and 243, if you have been arrested and charged for battery, it is imperative that contact an experienced and skilled criminal defense attorney as soon as possible. How the prosecution decides to charge the battery, whether it will be a misdemeanor or a felony, and how the court determines your sentencing will entirely dependent on the facts unique to your case. Generally, the prosecution is only going off the police report which is almost always highly prejudicial against the accused and very favorable to the alleged victim. This is why the days following your arrest will be a crucial period in terms of contacting the prosecution, informing them of facts not included in the police report, and negotiating the charges down to a slap on the wrist Disturbing the Peace, for example, or possibly having the charges dismissed all together. Whatever the facts specific to your case may be, it is imperative that you consult with an experienced San Diego battery lawyer as soon as possible so that you may consult on the best avenue to take in ensuring your liberty and rights are protected. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through these difficult and delicate matters involving charges under PC § 242 and 243. If you or a loved one has been arrested and charged with assault & battery please feel free to contact the Law Office of Marc S. Kohnen for a complimentary and confidential consultation about your options in this pressing issue.
“When I met Marc, I was immediately relieved. His calm and professional demeanor was exactly what I needed. He handled my case without a hiccup.”
Heather M. | Rosemead, CA
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