California "Assault & Battery" Laws
Penal Code 242 PC
A California Penal Code pc 242 battery takes place when you willfully and unlawfully use force or violence upon another.1 You can be convicted of this offense even if you don't harm or injure the other person, as long as you make some type of unwanted physical contact.2
In order to recognize when you do... and more importantly when you don't... commit a battery, our California criminal defense lawyers will provide a comprehensive guide to understanding California battery law by addressing the following:
If, after reading this article, you have additional questions, we invite you to contact us.
You may also find helpful information in our related articles on Penal Code 240 Assault, Penal Code 245 (a) (1) Assault with a Deadly Weapon (ADW), Penal Code 243 Battery on a Peace Officer, Penal Code 243 (e) (1) Domestic Battery, Penal Code 243.4 Sexual Battery, and Self-Defense.
California law defines battery... which is sometimes referred to as assault & battery... under Penal Code 242 PC. A California battery is simply this: any willful and unlawful touch that is harmful and/or offensive.3
The slightest touch can trigger a battery allegation if it is done in an angry or offensive manner.4
If, for example, Sara spits on Julie, Julie could properly claim that Sara battered her. Despite the fact that Julie wasn't injured, Sara's act was willful, unwanted, and offensive... which amounts to the crime of battery.
If the battered person is seriously hurt, the criminal case may be prosecuted under Penal Code 243(d) as a battery causing serious bodily injury.5 Otherwise known as an aggravated battery, this offense will be further discussed in the section entitled "Battery and Related Offenses".
If the battered person doesn't suffer serious bodily injury, prosecutors will file the case as a misdemeanor (otherwise known as a simple battery) under PC 242.
The exception to this rule is when you allegedly commit a California Penal Code 243 battery on a peace officer. If the battered person is a police officer... or other protected civil servant... the offense may be filed as either a misdemeanor or a felony, regardless of whether a serious bodily injury is inflicted.6
And because of the special consideration afforded to these protected individuals, you face a greater jail or prison sentence and potentially higher fines than you would if you were convicted of a Penal Code 242 PC simple battery.
According to Newport Beach criminal attorney John Murray8, "people often use the terms ‘assault' and ‘battery' interchangeably, or to refer to the same offense." However, assault (defined under California Penal Code 240) and battery (Penal Code 242) are actually two separate crimes.
A Penal Code 242 pc battery (defined above) requires some type of violent, painful, or offensive physical contact.
A California Penal Code 240 assault, on the other hand, may be filed when an attempt to injure another is made. No physical contact is actually necessary to be convicted of assault.9
A California assault can take place even though no battery occurs. However, a battery necessarily includes an assault. This is because it is impossible to commit a battery (a willful act) without first attempting to do so.
An assault is often called an "attempted battery," while battery is often called a "completed assault". Let's look at some examples to better illustrate the point.
Tom and Eric get into a heated argument at a nightclub. Tom decides to punch Eric. He swings his fist at Eric's face, but misses. The bouncers then restrain and eject Tom. No physical contact actually occurred.
Tom's California criminal defense lawyer would argue that Tom's conduct didn't rise to the level of battery, but only assault. Although Tom was arrested for battery, he only assaulted Eric, since there was no actual contact.
Take the same example. This time Tom actually connects his punch. Now prosecutors can file a PC 242 battery because there was physical contact.
Because PC 240 assault is a necessarily included offense of battery, you cannot be punished for committing both offenses at the same time.10 A lesser offense is "necessarily included" if it is impossible to commit the greater offense (in this case, battery) without necessarily committing the lesser offense.
Since you cannot batter someone without first assaulting that person, assault is a necessarily lesser included offense of battery. As a result, you can be convicted of both offenses but only sentenced for one.11
In order to prove that you committed a PC 242 battery, the prosecutor must prove the following three facts (otherwise known as "elements" of the crime):
- that you willfully,
- used force or violence,
- upon another.12
Let's take a closer look at these terms to better understand the elements.
"Willfully" means with a purpose or willingness to commit the act. It is not necessary that you (1) intend to break the law, or (2) intend to injure another.13
For example: Rick and Joan were involved in an argument. Rick drove away from the scene in a reckless manner and accidentally hit Joan when he wasn't looking.
Although it may be true that hitting Joan with the car was an accident, he willfully drove the car in a reckless manner. That willfulness is the type of conduct defined above...Rick acted "willfully" even though he didn't intend to break the law or injure Joan.
Force or violence
The words "force or violence" mean the same thing. With respect to California battery law under Penal Code 242 PC, they refer to any illegal use of physical force against another person.14
The force or violence doesn't need to result in pain or harm. The slightest touch is sufficient for a battery if it is done in a (1) rude, (2) angry, or (3) disrespectful manner. The bottom line is that any unwarranted and unjustifiable touch suffices to trigger a California simple battery.15 Referring to the example used above, spitting on another perfectly illustrates this point.
"Upon" means to touch. To "touch" another person (within the meaning of PC 242 battery law) means to touch
- the person,
- his or her clothing, or
- something attached to or closely connected to that person.16
- Touching the accuser-
Jack punches Mike in the face.
- Touching the accuser's clothing-
Jack pushes Mike's shoulder (which is covered by his shirt).
- Touching something attached to or closely connected to the accuser-
Jack slaps a coffee cup out of Mike's hand.
In the last example, the cup is in Mike's hand and therefore qualifies as something "attached" to him. There are, however, less obvious instances of this third type of touching.
Tony kicks Mary's dog while she is walking it on a leash.
Tony purposely rams his car into Mary's car while she's in it.
Although the force in both instances was applied to something other than Mary, the dog and car were "attached or closely connected" to her. As a result, the District Attorney could prosecute Tony for battery under Penal Code 242 PC.
This photograph was originally taken by Flickr user SMN and the original photo can be found here.
There are several offenses that relate to battery... either because they are lesser included, as is the case with PC 240 assault... or because they are variations of PC 242 battery. The following are a few of the most common examples.
California Penal Code 243(d) battery causing serious bodily injury
Penal Code 243(d), also known as aggravated battery, is a wobbler.17 "Wobblers" may be filed as misdemeanors or felonies, depending on (1) the facts of the specific case, and (2) your criminal history.
A "serious bodily injury" is one that results in a significant injury. Examples include (but are not limited to a concussion, loss of consciousness, broken bones, and disfigurement).18
Taking an example from above, if Tom not only connects his punch, but breaks Eric's jaw as a result, prosecutors could file Penal Code 243(d) battery causing serious bodily injury.
It should be noted that if the offense is charged as a felony because the victim suffers a great bodily injury, it will be labeled a violent felony. A violent felony subjects you to a "strike" under California's Three Strikes Law.19
California Penal Code 245 (a) (1) assault with a deadly weapon (ADW)
A California Penal Code 245 (a) (1) assault with a deadly weapon (ADW) takes place when you attempt to assault another with any type of deadly weapon or means of force that is likely to cause great bodily injury to that individual.20 So...
Suppose Tom attacks Eric with a knife, a beer bottle or some other dangerous weapon. In this scenario, prosecutors would likely file a battery and an ADW.
Like aggravated battery, this is a violent felony and a potential strike under California's Three Strikes Law.21
California Penal Code 243 (e) (1) domestic battery
There is very little difference between the elements in a simple battery under Penal Code 242 PC and a California Penal Code 243 (e) (1) domestic battery. The only added requirement in the latter is that the victim must be your intimate partner. 22
Intimate partners, under California domestic battery law, include:
- your fiancé or fiancée
- your current or former spouse,
- someone with whom you live,
- the parent of your child, and
- anyone you are or were dating. 23
California Penal Code 243.4 sexual battery
Unlike simple battery or domestic battery, California Penal Code 243.4 sexual battery has elements that are very specific to that offense. Sexual battery is the non-consensual touching of the intimate part of another for (1) sexual arousal, (2) sexual gratification, or (3) sexual abuse.24
It is therefore related to simple battery because both offenses involve an unsolicited, non-consensual touch.
If you are convicted of simple battery pursuant to Penal Code 242 PC, you face all of the following25:
- informal (otherwise known as summary) probation for up to three years
- up to six months in a county jail
- a maximum $2,000 fine
- possible community service and/or successful completion of a batterer's program
If you are convicted of aggravated battery pursuant to Penal Code 243 (d) PC, you may be charged with a misdemeanor or a felony. If the injury isn't a "serious bodily injury", you will likely face a misdemeanor conviction, subjecting you to a maximum one-year county jail sentence.26
If the person whom you battered suffers a serious bodily injury, you face a felony, punishable by27:
- formal probation
- 2, 3, or 4 years in the California State Prison
- a possible "strike" on your record
This photograph was originally taken by Flickr user James Fischer and the original photo can be found here.
Many people in California are wrongly arrested for the crime of battery. But simply getting arrested by the police doesn't necessarily mean you will be convicted in court.
Below are some examples of the most common defenses that a Los Angeles battery criminal defense attorney could present on your behalf:
Self-defense / Defense of others
The California law of self-defense and the defense of others applies to situations where you are simply trying to protect yourself or another from imminent harm. If you reasonably believe that you must fight back in order to prevent harm, you are entitled to do so... provided that once the danger has passed, you stop your counter attack.28
For example, if Adam is attacked by Phil, he is allowed to fight back to defend himself. But, if Adam knocks Phil to the ground and it is apparent that Phil won't be getting back up to fight, Adam cannot continue to use force against Phil. If he does, self-defense will no longer apply.
Consent most typically applies in situations where one knowingly engages in a physical or contact activity. Playing a contact sport, engaging in a fight scene as an actor, operating on a patient as a surgeon... these are all examples of situations where you would be entitled to an acquittal for battery.
That said, you are only entitled to an acquittal as long as you don't exceed the scope of the activity. This means that you must abide by reasonable expectations as to the appropriate level of touching required for the activity.
If, for example, a pitcher deliberately strikes a batter with a pitch, the pitcher commits a California battery under Penal Code 242 PC.
This defense to Penal Code 242 battery may apply when no "will" to inflict force or violence exists.
Examples include (1) inadvertently shoving someone while walking down a crowded street, or (2) unintentionally causing an auto accident.
Parental right to discipline a child
Although this defense is most commonly raised in connection with California Penal Code 273 (d) child abuse, you may find yourself in a situation where you are prosecuted for both offenses.
Parents are allowed to use physical force to discipline their children. However, the force must (1) be "reasonable", and (2) not be excessive under the circumstances.29 For more information on this defense, please review our article on Penal Code 273 (d) | California child abuse laws.
If you have additional questions or would like to confidentially discuss your case with one of our California criminal defense attorneys, please don't hesitate to contact us.
We have local criminal law offices in Los Angeles, the San Francisco Bay area, Orange County, San Bernardino, Riverside, Ventura, San Jose, and many nearby areas.
Los Angeles County Batterer's Classes - A Court appointed list of batterer's classes throughout L.A. County
Office for Victims of Crime - Provides local and national resources to victims of domestic violence and other crimes
Alcoholics Anonymous - Offers free, nondenominational classes and other resources to help alcoholics achieve sobriety
Nevada assault & battery laws - Our information page about Nevada Assault & Battery laws.
1 California Penal Code 242 -- Battery. ("Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.")
2 Judicial Council Of California Criminal Jury Instruction 960 -- Simple battery. ("The slightest touching can be enough to commit a battery if it is done in a rude or angry way.")
3 See California battery Penal Code 242 PC, endnote 1, above.
4 See simple battery, endnote 2, above.
5 California Penal Code 243 -- Battery; punishment. ("243 (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.")
6 California Penal Code 243 battery on a peace officer. Subdivisions (b) and (c) set forth the different persons who receive heightened protection under California's battery laws and the punishments that relate to each.
7 See same.
8 Although Newport Beach criminal attorney John Murray primarily practices in Newport Beach, he also represents clients throughout Southern California, including the South Bay and Los Angeles.
9 California Penal Code 240 -- Assault defined. ("An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.")
10 People v. Reed, (2006) 38 Cal.4th 1224, 1226. ("In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. "In California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.'")
11 See same.
12 California Jury Instructions -- Criminal 16.140 - Penal Code 242 pc Simple battery. ("In order to prove this crime, each of the following elements must be proved:  A person used force or violence upon the person of another; and  The use was willful [and unlawful].")
13 Judicial Council Of California Criminal Jury Instruction 960 -- PC 242 Simple battery. ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.")
14 California Jury Instructions -- Criminal 16.141 Battery--"Force and Violence" Defined. ("As used in the foregoing instruction, the words "force" and "violence" are synonymous and mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act.")
15 See same. ("The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner, is sufficient [to cause a California battery]. It is not necessary that the touching be done in actual anger or with actual malice; it is sufficient if it was unwarranted and unjustifiable.")
16 See same. ("The touching essential to a battery may be a touching of the person, of the person's clothing, or of something attached to or closely connected with the person.")
17 See endnote 5, above.
18 Judicial Council Of California Criminal Jury Instruction 925 -- Battery Causing Serious Bodily Injury (Pen. Code, sections 242 and 243(d) PC). ("[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (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).]")
19 California 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 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.")
20 California Penal Code 245 PC -- Assault with deadly weapon or force likely to produce great bodily injury; punishment. ("(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.")
21 See endnote 18, above.
22 California Penal Code 243 PC -- Battery; punishment. (" (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, fiancé, or fiancée, 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.")
23 See same.
24 California Penal Code 243.4 -- Sexual battery. ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.")
25 California 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.")
26 See endnote 5, above.
27 See same.
28 Judicial 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:  The defendant reasonably believed that (he/she/ [or] someone else/ [or]
29 California Jury Instructions - Criminal. CALJIC 4.80 Parent's Right to Discipline Child. ("It is lawful for a parent reasonably to discipline a child, and in doing so to administer reasonable punishment, including the infliction of reasonable corporal punishment. However, it is unlawful for a parent to inflict unjustifiable punishment upon a child. Corporal punishment is not justified and is therefore unlawful if the punishment was not reasonably necessary, or was excessive, under the circumstances.