Battery on a Peace / Police Officer
California Penal Code Laws 243(b) & 243(c)(2)

If you or a loved one has been accused of battery on a police officer, contact us for a free consultation. Our criminal defense lawyers defend clients accused of battery throughout California and Nevada.

California battery law prohibits the willful and unlawful use of force or violence against another person.1 When that force or violence is directed at specific individuals...most notably, police officers and firefighters...you face stricter penalties.2

Unfortunately, many people get falsely accused of this offense. Cops who either don't like a particular suspect (or who are on a power trip) can easily allege this offense...and cause an innocent individual to suffer a wrongful prosecution.

Fortunately, help exists. As California criminal defense lawyers, we understand the legal technicalities of this crime. And being former cops and prosecutors ourselves, are in a unique position to investigate and defend against it with our invaluable insider knowledge.

In order to help you better understand how battery on a police officer is prosecuted...and, more importantly, defended...our Los Angeles criminal defense attorneys3 will address the following:

1. An Overview of California Battery Law
2. How Does the Prosecutor Prove that I
Committed a "Battery on a Peace Officer"
under California Penal Code 243(b)
& 243(c)(2) PC?
3. Penalties, Punishment, and Sentencing for Battering a Police Officer
4. Battery on a Peace Officer and California's Three Strikes Law
5. How Do I Fight a "Battery on a Police Officer" Allegation?
6. Can I Claim Self-Defense in Connection with a Battery on a Peace Officer Allegation
7. Who Else is Protected Under California's "Assault and Battery" Laws?
8. Disturbing the Peace as a Plea Bargain in a Battery on a Police Officer" Case
9. Comparing Nevada law

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Penal Code 242 PC Battery, Penal Code 240 PC Assault, Penal Code 245 Assault with a Deadly Weapon, Penal Code 148 PC Resisting Arrest, Great Bodily Injury, California Self-Defense Law, and Penal Code 415 Disturbing the Peace.

1. An Overview of California Battery Law

Stated in Penal Code 242, California "battery" law prohibits the unwanted or unjustified touching of another person.4Any unwanted or unjustified touch...no matter how slight...will suffice, regardless of whether or not the alleged victim suffers an injury.5

This is the difference between a battery and an assault. A California Penal Code 240 assault doesn't necessarily involve any physical contact. An assault is an attempt to inflict an injury upon another person.6 Put another way, an assault is an attempted battery.

There are two types of battery:

  1. "simple" battery (which is misdemeanor battery), and
  2. "aggravated" battery (which may be filed as a misdemeanor or a felony).

Simple battery vs. aggravated battery

A California "simple" battery takes place when the accuser suffers little to no injury. The penalty for California misdemeanor battery is up to six months in the county jail and/or a fine of up to $2,000.7

A California "aggravated" battery takes place when (1) the alleged victim suffers a more significant injury, or (2) when the battery is committed against certain "protected persons" such as

  • peace officers,
  • firefighters,
  • doctors, and
  • nurses.

Depending on the extent of the injury, an aggravated battery can either (1) remain a misdemeanor (with an increased maximum jail sentence), or (2) rise to felony level, subjecting you potentially to a California State Prison sentence.8

The legislative history of Penal Code 243 PC -- battery on a police officer

When first enacted in 1872, California Penal Code 243 PC only addressed simple battery. It punished a simple battery with a maximum fine of $1,000 and up to one year in a county jail. It wasn't until 1961 that the California Legislature specifically addressed battery on a police officer, although it left the penalty for the offense unchanged.9

Then in 1965, the penalty for battering a peace officer was raised to a one to ten-year state prison sentence. In the mid 1970s, the prison sentence was reduced to two, three, or four years. In 1983 the fine was increased to $2,00010, which is the way the offense is currently punished.

Throughout the years, Penal Code 243 PC underwent a number of changes, some major, some minor. It has continually increased the classes of people who receive special protection under this law. The code broadened the definition of "peace officer" and expanded the code to include those "protected" persons listed above.

2. How Does the Prosecutor Prove that I Committed a "Battery on a Peace Officer" under California Penal Code 243(b) & 243(c)(2)?

In order to convict you of battery on a police officer (or other protected person), the prosecutor must prove five facts (otherwise known as "elements" of the crime)11:

  1. that you committed a battery,
  2. against a peace officer (or other protected person),
  3. while that individual was engaged in the performance of his/her duties,
  4. that you knew or reasonably should have known that he/she was a peace officer or other protected person engaged in the performance of those duties, and
  5. that the officer or other protected individual sustained an injury.

Let's take a closer look at each of these elements.

Definitions of terms

Below is a description of the terms that are critical to understanding California "battery on a police officer" law. They are followed by some examples to illustrate their meanings.

Peace Officer

A "peace officer" is any officer whose primary duty is law enforcement. This includes (but is not limited to)12:

Engaged in the performance of duties

In the crime of battery on a peace officer, "engaged" in the performance of duties means13:

  • making (or attempting to make) a lawful arrest,
  • exercising custody over a person, who has been placed under a citizen's arrest,
  • detaining (or attempting to detain) a person for questioning, and /or
  • using reasonable force in an effort to (1) conduct a lawful detention, or (2) make an arrest.

A peace officer may be "engaged in the performance of his/her duties" regardless of whether the officer is on or off duty. This includes officers who are working as private security guards or patrolman as well.14

Knew or reasonably should have known

Whether or not you "knew or reasonably should have known" that the alleged victim was a peace officer or other protected individual engaged in the performance of his/her duties will be judged by an objective standard.

This means that the judge and/or jury will consider whether a "reasonable person" in your shoes...at the time of the offense...would have realized that the individual was an officer, doctor, firefighter, etc. who was engaged in the performance of his/her duties.

Some considerations may include (but are not limited to):

  • whether the officer/doctor/firefighter was in uniform,
  • whether the officer was trying to handcuff you or another suspect, and / or
  • whether the individual was driving in a recognized "official" car, such as a marked police car, fire engine, or ambulance.
Example: Officer Joe (who happened to be walking down the street in shorts and a t-shirt) saw Mike running out of a store with a bag of money and a gun. Believing that Mike had just robbed the store, Officer Joe yelled "stop" and ran towards Mike, attempting to apprehend him. When Joe got close, Mike "pistol whipped" him and continued to run.

Given this example, Officer Joe was attempting to effectuate a lawful detention...and was therefore engaged in the performance of his duties...despite the fact that he was off-duty at the time. However, Mike's California criminal defense attorney would argue that there was no "reasonable" way for Mike to know that Joe was an officer.

Joe was in plain clothes, walking down the street, and didn't announce himself as a deputy. This is how Mike's lawyer would prevent the offense from rising to an aggravated "battery on a peace officer".

But...

If the same scenario took place and Joe was in uniform, the prosecutor would likely file the enhanced felony under section 243(c)(2) of the California Penal Code. This allegation would be based on the fact that Mike "knew or reasonably should have known" that Joe was an officer "engaged in the performance of his duties".

Injury

There are two classes of injury that are relevant to battery on a peace officer: (1) a generic injury, and (2) a serious bodily injury.

California Penal Code 243(c)(1) defines an "injury" as any physical injury that requires professional medical treatment.15 Whether or not the officer actually receives medical treatment is irrelevant...the nature, seriousness, and extent of the injury is what matters.16

The "injury" must be serious enough that it

  1. impairs physical activity, or
  2. interferes with the officer's duties.

Let me give you an example:

The police respond to a California domestic violence call17. While Ted was being handcuffed by the arresting officer, he swung his arm to escape the officer's hold and, in doing so, hit the officer in the mouth, cutting his lip.

Even though the officer suffered an "injury", Ted's criminal defense lawyer would argue that the "injury" didn't impair the officer's physical ability or prevent him from being able to carry out his arrest.

Serious bodily injury / great bodily injury

If the officer sustains a "serious bodily injury", prosecutors can choose to file Penal Code 243(c)(2) battery against a peace officer alleging injury, and/or Penal Code 243(d) which is simply felony battery. Penal Code 243(d) can be committed against anyone, and has a slightly stiffer prison sentence than 243(c)(2).18 In either event...

"Serious bodily injury" and "great bodily injury" have the same basic meaning under California battery law...serious harm to one's body. Examples include

  • a wound requiring extensive stitches,
  • a concussion,
  • broken bones, or
  • disfigurement.19

Using the same example from above...

When Ted inadvertently hit the officer while resisting arrest, he actually swung so hard that he knocked one of the officer's teeth out, causing the officer's mouth to bleed profusely. This type of injury would likely require medical attention.

Under these circumstances, prosecutors could therefore file the battery as a felony "aggravated battery on a peace officer" under either California Penal Code section 243(c)(2) or section 243(d).

It should be noted that simple battery on a peace officer is a necessarily "lesser included offense" of aggravated or felony battery on a peace officer. This means that even if the alleged injury is substantial enough that the prosecutor alleges the felony...but the jury doesn't believe the officer was "injured"...the jury could still return a verdict on the lesser misdemeanor count instead.20

3. Penalties, Punishment, and Sentencing for Battering a Police Officer

"Battery on a peace officer" is a "wobbler" which means the offense may be filed as either a misdemeanor or a felony, depending on

  1. the severity of any injuries,
  2. the circumstances of the offense, and
  3. your criminal history.

Generally speaking, if the officer is not injured, the offense will be filed as a misdemeanor. If the officer is injured, the above three factors will be considered to determine (1) whether to file a misdemeanor or a felony, and, if a felony, (2) whether to file under Penal Code 243(c)(2) or 243(d).

California misdemeanor battery on a peace officer

A conviction subjects you to any or all of the following21:

  • California probation for up to three years (misdemeanor probation is referred to as "informal" or "summary" probation,
  • up to one year in a county jail,
  • a maximum $2,000 fine (or up to $10,000 if the officer suffers an injury),
  • completion of a batterer's program, and
  • community service.

∗ ∗Visit our page on California probation law and probation violation hearings for a more extended discussion of probationary sentences.

California felony battery on a peace officer

Again, a conviction subjects you to any or all of the following22:

  • formal probation,
  • 16 months, or two or three years in the California State Prison (or two, three, or four years if "serious bodily injury" is inflicted),
  • a maximum $10,000 fine,
  • a possible "strike" on your record, pursuant to California's Three Strikes Law.
4. Battery on a Peace Officer and California's Three Strikes Law

A felony aggravated battery on a peace officer conviction will result in a "strike" on your record under California's Three Strikes Law if 23:

  1. you inflict "great bodily injury" on the officer, or
  2. the offense involves Penal Code 245(a)(1) "assault with a deadly weapon".

If you are subsequently charged with any felony and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.24

If charged with a third felony and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.25

5. How Do I Fight "Battery on a Police Officer" Allegation?

Some of the most common defenses that an experienced California "assault and battery" defense attorney could present on your behalf include:

Accident

This defense applies to situations where you didn't "willfully" intend to harm another. For example, if while you were walking down a crowded street, you "accidentally" bumped into a uniformed cop who was conducting an investigation, you would not be criminally liable for "battering a peace officer".

False allegations

Often times, "battery on a peace officer" is a trumped-up offense based on an officer's unlawful motive for seeking revenge against the accused. Officers who don't like a particular suspect have wide-reaching power to

  1. "embellish" what truly took place, or
  2. cover their own misconduct by claiming that a suspect committed a battery upon them.

Rancho Cucamonga criminal defense attorney John Murray explains26, "I've seen many clients who have been wrongly arrested for this offense. False accusations can devastate an individual's family, career, and freedom. A seasoned criminal defense lawyer will help reveal the truth."

6. Can I Claim Self-Defense in Connection with a Battery on a Peace Officer Allegation?

California self-defense laws provide that if you have a reasonable and honest belief that you or another person is about to be seriously hurt by another, you are allowed to fight back "reasonably".27

There are two times when self-defense may excuse or mitigate your conduct in using force against an officer:

  1. when an officer uses unreasonable or excessive force against you, and
  2. when the officer unlawfully arrests you.

Let's take a closer look at these two scenarios.

Unreasonable or excessive force

If an officer uses "unreasonable or excessive force" against you, he isn't "engaged in the performance of his duties".28 As a result, you are entitled to fight back with enough "reasonable" force to counter the level of force being used against you.29

Example: While arresting a screaming and kicking Mary, Peace Officer Rich used excessive force when he choked and beat her to put her in his police car. Unable to breathe, Mary bit the officer so that he would release her.

Mary was initially "resisting." But the police officer choking and beating her was excessive. This rendered the arrest unlawful. Mary simply countered with enough force to free herself from the chokehold.

However, if the judge and/or jury believe that your resistance was not justified or that your use of force was also excessive, you will not qualify for this defense.30

Unlawful arrest

If the officer is attempting to arrest you unlawfully, and you resist by inflicting force or violence upon him/her, prosecutors will still file (1) a California "simple battery" against you for "willfully inflicting injury upon another"31, and/or (2) a Penal Code 148 resisting arrest charge against you.32 But, a good California criminal defense lawyer knows the most effective ways to prevent prosecutors from pursuing any type of battery allegation. He/she will argue that if an officer was attempting to arrest you unlawfully, that officer was not "engaged in the performance of his/her duties".33

If your attorney can convince the prosecutor that the officer wasn't "engaged in the performance of his/her duties"...and was therefore guilty of police misconduct or incompetence...the prosecutor will be more inclined to resolve your case in a favorable manner.

7. Who Else is Protected Under California's "Assault and Battery" Laws?

Examples of Other Protected Persons:

  • Firefighters

  • Doctors/Nurses/EMTs/Paramedics

  • School Employees

  • Jurors

While California Penal Code 243 "battery on a peace officer" is one of the most well-known battery allegations that target a particular individual, there are several other people who are afforded this enhanced protection as well.

Depending on the circumstances of the offense, you face a variety of different punishments and penalties if you commit a battery or an assault upon any of the following individuals:

  • firefighters,
  • lifeguards,
  • doctors / nurses / EMTs / paramedics,
  • public prosecutors / public defenders,
  • parking or other traffic enforcement personnel,
  • school employees,
  • jurors, and
  • elders or dependent adults.34

This list is an example (and is by no means exclusive) of the different people protected by this statute. If you have been arrested for committing an assault or battery against a protected person, it is advisable that you immediately contact a local criminal defense attorney who specializes in these offenses.

8. Disturbing the Peace as a Plea Bargain in a "Battery on a Police Officer" Case

Unfortunately, there will be times when the evidence is simply too great to overcome. Even when this is the case, all hope isn't lost. Many times, the prosecutor is willing to engage in plea bargaining.

A plea bargain is an agreement made between the prosecution and the defense where the defendant agrees to plead guilty or no contest in exchange for either (1) a reduced sentence, (2) a lesser charge, or (3) both.

California Penal Code 415 "disturbing the peace" law is a common charge that is frequently bargained for in battery on a peace officer cases. Although technically disturbing the peace has nothing to do with battering a police officer, it (1) carries a lesser sentence than the battery allegation, and (2) exposes you to less of a social stigma on your criminal record.

And on that note, if your California criminal defense lawyer can plea bargain the Penal Code 415 disturbing the peace charge down to an infraction, it won't even appear on your criminal record.

9. Comparing Nevada law

Nevada law of "battery on a peace / police officer" operates much like California's, making it an extension of the crime of battery when the alleged victim is a protected person. But the list of protected persons in Nevada also encompasses taxicab drivers and transit officers. This is due to the large taxicab industry in Las Vegas and Reno, and the robberies and carjacking of cab drivers over the years.

The sentencing scheme in Nevada also follows California. If the battery inflicts no injury, or only minor injuries, on the police officer or protected person, it's punishable as a "gross misdemeanor" and carries only up to one year in jail. But if the battery inflicts a substantial bodily harm, it constitutes a Category B felony, punishable by 2 to 10 years in Nevada State Prison.35

Call us for Help
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If you or loved one is charged with [Penal Code Laws 243(b) & 243(c)(2) battery on a police officer and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Our Nevada criminal defense lawyers have offices located in Las Vegas and Reno.

Additional Resource:

Los Angeles County Batterer's Classes-
A Court appointed list of batterer's classes throughout L.A. County

Legal References:

1California Penal Code 242 PC -- Battery. ("Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.")

2California Penal Code 243 PC -- Battery, punishment. ("(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, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is 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, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, 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 a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a nonsworn employee of a probation department, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, 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. (2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment.")

3Our Los Angeles criminal defense attorneys have offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

4See California Penal Code 242 PC -- "Battery", endnote 1, above.

5People v. Rocha (1971) 3 Cal.3d 893, 899. ("'It has long been established, both in tort and criminal law, that 'the least touching' may constitute battery. In other words, Force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark. (1 Witkin, Cal.Crimes (1963) supra, pp. 243-244.)'")

6California Penal Code 240 PC -- Assault. ("ASSAULT DEFINED. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")

7California Penal Code 243 PC -- Battery, punishment. ("(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.")

8 See same, endnote 2, above.

9California Penal Code 243 -- Battery on a peace officer (HISTORICAL AND STATUTORY NOTES). ("As enacted in 1872, this section read: "A battery is punishable by fine not exceeding one thousand dollars, or by imprisonment in the County Jail not exceeding one year."...The 1961 amendment added a second sentence to the first paragraph and added a second paragraph. Added provisions read: "When it is committed against the person of a peace officer, and the person committing the offense knows or reasonably should know that such victim is a peace officer engaged in the performance of his duties, and such peace officer is engaged in the performance of his duties, the offense shall be punished by a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than one year, or both. "As used in this subdivision, 'peace officer' refers to any person designated as a peace officer in the first paragraph of Section 817, as well as any inspector or investigator regularly employed as such in the office of a district attorney, any member of the California Highway Patrol, any policeman of the San Francisco Port Authority, each member of an arson investigating unit of an organized fire department, and each deputized law enforcement member of the Wildlife Protection Branch of the Department of Fish and Game.")

10See same. ("The 1965 amendment changed punishment from "a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than one year, or both" to "imprisonment in the state prison for not less than 1 nor more than 10 years"; and included, within definition of "peace officer", "any member of the California State Police"....The 1976 amendment by c. 1139 deleted, from the end of the second sentence, "for not less than one nor more than 10 years"; substituted, at the end of the first paragraph, "two, three, or four years" for "a period of not more than five years"; and inserted, in the second paragraph [deleted in 1980], "by subdivisions (a) to (e), inclusive, of" and "Section 830.5,"....The 1983 amendment increased the maximum fines throughout the section from $1,000 to $2,000.")

11California Jury Instructions -- Criminal. CALJIC 9.22 -- Battery on a peace officer, etc. ("In order to prove this crime, each of the following elements must be proved:[1] A person willfully and unlawfully applied physical force against the person of a [peace officer] [firefighter] [__________]; [2] At that time the [peace officer] [firefighter] [__________] was engaged in the performance of [his] [her] duties; [3] The person who applied the physical force knew or reasonably should have known that the other person was: (a) a [peace officer] [firefighter] [__________]; [and] (b) engaged in the performance of [his] [her] duties [; and] [.] [4] Injury was inflicted on the [peace officer] [firefighter] [__________].]")

12California Penal Code 830.1. PC -- Persons who are peace officers...("(a) Any sheriff, undersheriff, or deputy sheriff, employed in that capacity, of a county, any chief of police of a city or chief, director, or chief executive officer of a consolidated municipal public safety agency that performs police functions, any police officer, employed in that capacity and appointed by the chief of police or chief, director, or chief executive of a public safety agency, of a city, any chief of police, or police officer of a district, including police officers of the San Diego Unified Port District Harbor Police, authorized by statute to maintain a police department, any marshal or deputy marshal of a superior court or county, any port warden or port police officer of the Harbor Department of the City of Los Angeles, or any inspector or investigator employed in that capacity in the office of a district attorney, is a peace officer.")

See also California Penal Code 830.2. Peace officers...The following persons are peace officers whose authority extends to any place in the state: (a) Any member of the Department of the California Highway Patrol including those members designated under subdivision (a) of Section 2250.1 of the Vehicle Code, provided that the primary duty of the peace officer is the enforcement of any law relating to the use or operation of vehicles upon the highways, or laws pertaining to the provision of police services for the protection of state officers, state properties, and the occupants of state properties, or both, as set forth in the Vehicle Code and Government Code. (b) A member of the University of California Police Department appointed pursuant to Section 92600 of the Education Code, provided that the primary duty of the peace officer shall be the enforcement of the law within the area specified in Section 92600 of the Education Code. (c) A member of the California State University Police Departments appointed pursuant to Section 89560 of the Education Code, provided that the primary duty of the peace officer shall be the enforcement of the law within the area specified in Section 89560 of the Education Code. (d)(1) Any member of the Office of Correctional Safety of the Department of Corrections and Rehabilitation, provided that the primary duties of the peace officer shall be the investigation or apprehension of inmates, wards, parolees, parole violators, or escapees from state institutions, the transportation of those persons, the investigation of any violation of criminal law discovered while performing the usual and authorized duties of employment, and the coordination of those activities with other criminal justice agencies. (2) Any member of the Office of Internal Affairs of the Department of Corrections and Rehabilitation, provided that the primary duties shall be criminal investigations of Department of Corrections and Rehabilitation personnel and the coordination of those activities with other criminal justice agencies. For purposes of this subdivision, the member of the Office of Internal Affairs shall possess certification from the Commission on Peace Officer Standards and Training for investigators, or have completed training pursuant to Section 6126.1 of the Penal Code. (e) Employees of the Department of Fish and Game designated by the director, provided that the primary duty of those peace officers shall be the enforcement of the law as set forth in Section 856 of the Fish and Game Code. (f) Employees of the Department of Parks and Recreation designated by the director pursuant to Section 5008 of the Public Resources Code, provided that the primary duty of the peace officer shall be the enforcement of the law as set forth in Section 5008 of the Public Resources Code. (g) The Director of Forestry and Fire Protection and employees or classes of employees of the Department of Forestry and Fire Protection designated by the director pursuant to Section 4156 of the Public Resources Code, provided that the primary duty of the peace officer shall be the enforcement of the law as that duty is set forth in Section 4156 of the Public Resources Code. (h) Persons employed by the Department of Alcoholic Beverage Control for the enforcement of Division 9 (commencing with Section 23000) of the Business and Professions Code and designated by the Director of Alcoholic Beverage Control, provided that the primary duty of any of these peace officers shall be the enforcement of the laws relating to alcoholic beverages, as that duty is set forth in Section 25755 of the Business and Professions Code. (i) Marshals and police appointed by the Board of Directors of the California Exposition and State Fair pursuant to Section 3332 of the Food and Agricultural Code, provided that the primary duty of the peace officers shall be the enforcement of the law as prescribed in that section. (j) The Inspector General, pursuant to Section 6125, and the Chief Deputy Inspector General, Chief Assistant Inspector General, Deputy Inspector General In Charge, Senior Deputy Inspector General, Deputy Inspector General, Senior Assistant Inspector General, Special Assistant Inspector General, and those employees of the Inspector General as designated by the Inspector General, are peace officers, provided that the primary duty of these peace officers shall be conducting audits of investigatory practices and other audits, as well as conducting investigations, of the Department of Corrections and Rehabilitation, Division of Juvenile Justice and the Board of Parole Hearings."

13CALJIC 9.23 -- Discharge or Performance Of Duties-Defined. ("[A "peace officer" is [discharging or attempting to discharge] [engaged in the performance of] [his] [her] duties if [he] [she] is [making or attempting to make a lawful arrest] [accepting or exercising custody over a person who has been arrested by a private citizen] [lawfully detaining or attempting to detain a person for questioning or investigation] [using reasonable force to effect a lawful [arrest] [or] [detention].] [A "firefighter" is engaged in the performance of [his] [her] duties if [he] [she] is engaged in firefighting, fire supervision, fire suppression, fire prevention, or fire investigation.] [A "custodial officer" is engaged in the performance of [his] [her] duties if [he] [she] is maintaining custody of a prisoner or performing tasks related to the operation of a local detention facility.]")

14See California Penal Code 243(b) -- Battery on a peace officer. ("...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, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman...")

15See California Penal Code 243 PC -- Battery on a peace officer. ("(5) "Injury" means any physical injury which requires professional medical treatment.")

16People v. Longoria (1995) 34 Cal.App.4th 12, 17. ("What the statute prescribes as a qualifying injury is an injury which " requires professional medical treatment." It is the nature, extent, and seriousness of the injury-not the inclination or disinclination of the victim to seek medical treatment-which is determinative. A peace officer who obtains "medical treatment" when none is required, has not sustained an "injury" within the meaning of section [California Penal Code 243], subdivision (c) [battery on a peace officer]. And a peace officer who does not obtain "medical treatment" when such treatment is required, FN3has sustained an "injury" within the meaning of section 243, subdivision (c). The test is objective and factual.")

See also Judicial Council Of California Criminal Jury Instruction. CALCRIM 945 -- Battery against a peace officer. ("[An injury is any physical injury that requires professional medical treatment. The question whether an injury requires such treatment cannot be answered simply by deciding whether or not a person sought or received treatment. You may consider those facts, but you must decide this question based on the nature, extent, and seriousness of the injury itself.]

17California domestic violence disputes can often lead to battery on a peace officer allegations. These emotionally charged, heated arguments are often broken up by the police where there police may inadvertently be struck or hit. When such is the case, a California criminal defense attorney would argue that the battery on the peace officer was unintentional and accidental, as opposed to willful.

18California Penal Code 243 PC -- Battery against a peace officer. ("(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.")

19See same. ("(4) "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.")

20CALJIC 9.22 -- Battery against a peace officer -- Use notes. ("[California] Penal Code � 243(b) is a misdemeanor [battery on a peace officer] and would be a necessarily included lesser offense in Penal Code � 243(c) [battery on a peace officer causing injury].

21California Penal Code 243 PC -- Battery against a peace officer. ("(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, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is 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, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, 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 a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a nonsworn employee of a probation department, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, 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. (2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment.")

In addition to the penalties addressed therein, California probation law authorizes a judge to impose probation conditions that are related to the offense. It is under that authority that a judge could sentence a defendant to counseling services and/or community service. This discretion is found in California Penal Code 1203.1, which states that ("(j) The court may impose...other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer...")

22See same.

23California Penal Code 667.5 -- Prior prison terms; enhancement of prison terms for new offenses. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice...")

See also California Penal Code 1192.7(c). ("As used in this section, 'serious felony' means...(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm...(11) assault with a deadly weapon or instrument on a peace officer.")

See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

24California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years...")

25See same.

26Rancho Cucamonga criminal defense attorney John Murray is an experienced trial lawyer and expert TV legal commentator who represents clients in the San Gabriel Valley and Inland Empire, including Palm Springs, Hemet, Riverside, and San Bernardino.

27Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

28People v. Soto (1969) 276 Cal.App.2d 81, 85. ("It is of course clear that to constitute the felonious conduct proscribed by Penal Code section 243 [battery on a peace officer]the assault must be on a peace officer who is Actually engaged in the performance of his duties. However, a peace officer is under no duty to make an unlawful arrest.")

See also People v. White (1980) 101 Cal.App.3d 161, 167. ("Thus, in the present case it becomes essential for the jury to be told that if they found the arrest was made with excessive force, the arrest was unlawful and they should find the defendant not guilty of those charges which required the officer to be lawfully engaged in the performance of his duties (ss 245, subd. [California Penal Code] (b), 243 and 148).")

29See same. ("Moreover, it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest (Boyes v. Evans, 14 Cal.App.2d 472, 58 P.2d 922). Therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime (Pen.Code, ss 692, 694).")

CALJIC 9.28 -- Use of Excessive Force by Officer. ("A peace officer is not permitted to use unreasonable or excessive force [in making or attempting to make an arrest] [in detaining or attempting to detain a person for questioning]. If an officer does use unreasonable or excessive force [in making or attempting to make an arrest] [in detaining or attempting to detain a person for questioning,] the person being [arrested] [detained] may lawfully use reasonable force to protect himself. Thus, if you find that the officer used unreasonable or excessive force [in making or attempting to make the arrest] [in making or attempting to make the detention] in question, and that the defendant used only reasonable force to protect himself, the defendant is not guilty of the crime charged [in Count ] [or of any lesser included offense].")

30See People v. White at 168, endnote 28, above. ("As discussed above, where the officer uses excessive force, the defendant cannot be guilty of sections 245, subdivision (b), [California Penal Code] 243 [battery on a peace officer] or 148 and where the jury finds reasonable force was properly used in self-defense, the defendant may not be convicted of any crime. (People v. Soto, supra, 276 Cal.App.2d at p. 85, 80 Cal.Rptr. 627.) Only when excessive force is used by a defendant in response to excessive force by a police officer may the defendant be convicted, and then the crime may only be a violation of section 245, subdivision (a) or of a lesser necessarily included offense within that section.")

31People v. Curtis (1969) 70 Cal.2d 347,355 (disapproved on other grounds). ("We confirm that a resisting defendant commits a public offense; but if the arrest is ultimately determined factually to be unlawful, the defendant can be validly convicted only of simple assault or battery. Cases holding or implying the contrary are disapproved.")

32California Penal Code 148 -- Resisting arrest. ("(a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.")

33See People v. White at 167, endnote 28, above. (""That portion of [California Penal Code] section 243 of the Penal Code which raises battery, a misdemeanor, to felony status where the victim is a peace officer engaged in the performance of his duties, does not come into play where the officer makes an illegal arrest, simply because '(a)n officer is under no duty to make an unlawful arrest.'")

See also CALJIC 16.103 -- Discharge or Performance of Duties-Defined. ("[A peace officer is [discharging or attempting to discharge] [engaged in the performance of] [his] [her] duties if [he] [she] is [making or attempting to make a lawful arrest] [accepting or exercising custody over a person who has been arrested by a private citizen] [lawfully detaining or attempting to detain a person for questioning or investigation] [using reasonable force to effect a lawful [arrest] [or] [detention]].]")

34California Penal Codes 243 et seq. provides a complete list of all of the different classes of people who are afforded heightened protection under California battery law.

35NRS 200.481 Battery: Definitions; penalties.

...
2. Except as otherwise provided in NRS 200.485, a person convicted of a battery, other than a battery committed by an adult upon a child which constitutes child abuse, shall be punished:
...
(c) If the battery is committed:
(1) Upon an officer, provider of health care, school employee, taxicab driver or transit operator who was performing his duty or upon a sports official based on the performance of his duties at a sporting event;
(2) The officer, provider of health care, school employee, taxicab driver, transit operator or sports official suffers substantial bodily harm; and
(3) The person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator or sports official,
→ for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.
(d) If the battery is committed upon an officer, provider of health care, school employee, taxicab driver or transit operator who is performing his duty or upon a sports official based on the performance of his duties at a sporting event and the person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator or sports official, for a gross misdemeanor, except under circumstances where a greater penalty is provided in this section.

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