The crime of "assault and battery" is a bit of a misnomer, actually the offense incorporates two separate crimes: Assault which is an unlawful act which creates an apprehension of physical force, and Battery which is the unlawful touching or actual use of force upon an individual. In California, the law of assault is codified and defined in Penal Code section 240 and it requires the accused to engage in an act which by its nature would likely result in the application of physical force on another person. The crime also requires that the suspect be in a position that would allow for the force and that he or she have the present ability to apply that force. This offense is a straight misdemeanor in the state and carries up to a year in the county jail if proven. Surprisingly, no actual contact or injury is required and a person could be found guilty of an assault even if the conduct amounted to a conditional threat if the conduct requires that the threatened party engage in some conduct that the threatening party has no legal right to demand.
A variation of the crime is that of assault with a deadly weapon or ADW. The applicable code section defining this is Penal Code 245. The prosecution must establish, by proof beyond a reasonable doubt, that the perpetrator committed the same elements as that of PC240 with the additional requirement that he or she utilize a deadly weapon. The law defines this as any object, weapon or instrument which is used in such a manner as to be capable of producing great bodily injury or death. Thus the instrumentality can be a firearm, knife, club, baseball bat or other physical object. The wepon can also be a motor vehicle, in recent years our office has seen a proliferation of assault charges (ADW) filed against persons in "road rage" situations. What distiinguishes a collision from a simple accident to that of assault is the element of intent. The difference between ADW and simple assault is that the former is a felony punishable by up to four years in the state prison. It is important to understand that the crime of ADW does not always require a weapon, a person could assault someone in such a manner that would be likely to result in great bodily injury, if so then the crime of ADW has occurred. With regard to an assault involving a motor vehicle or car, it should be noted that a California conviction of ADW under these circumstances requires a mandatory lifetime
revocation of any and all driving privileges.
Another frequently asked question as it pertains to the crime of assault with a deadly weapon is whether the "weapon" can be hands or feet? The answer is no, the law does not recognize these body parts as weapons as articulated in the California criminal statute. However, if one were to use these and severe injury resulted, say a serious bruise, cuts or broken bones which require hospitalization, the perpetrator could face an enhancement known as "assault causing great bodily injury". The end result of a conviction for such an offense is that the defendant could have a strike felony on his record which could cause a judge to sentence the individual to state prison.
Furthermore, the use of words alone cannot constitute an assault, the law requires an act along with the required intent to cause an assault. What this means is if you scream at someone and tell them you want to hurt them, no assault has occurred. However the crime of criminal threats
my have been committed.
The companion to assault is the offense of battery. This crime requires that the defendant actually make contact with the victim and that the contact, however slight, was unjustified and done with force. The term "unjustified" means that the application of force or violence was not in self defense. In establishing whether the force or violence was done in self defense the burden of proof is on the District Attorney or prosecutor to prove it was not in lawful self defense of them self or of others, such as a family member or friend. Variations of the crime of battery include the offense on a police or public officer, battery on a spouse or cohabitant, battery or a fireman or parking attendant, and battery causing serious injury. These events can all lead to incarceration, fines, probation, jail or loss of citizenship. A defense lawyer can help defend the case in Court and lead to a favorable result.
Criminal Defense Attorney Matthew J. Ruff has significant experience defending clients charged with all assault and battery charges in the state of California. His offices are located in Torrance which is in Los Angeles County and Bakersfield which is located in Kern County. He has personally obtained dismissals and acquittals of assault charges, both felony and misdemeanor in all Courts within his practice such as Los Angeles County Superior Court, Kern County Court, Torrance, Hermosa Beach, Gardena, Palos Verdes, Long Beach, Inglewood, Compton, LAX airport, Santa Monica and Venice, Lomita, Manhattan Beach, among many others. If you or someone you care about is facing jail time on these allegations, call Mr. Ruff today for a free consultation.