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Apr 22, 2020

Difference Between Assault and Battery

From television crime dramas to whodunit novels to everyday conversation, it’s common for “assault and battery” to be used as a single phrase. “We’re charging him with assault and battery,” a TV police officer says. “That sounds like assault and battery to me,” one neighbor says to another.

The truth is, California law differentiates between assault and battery. Whether you’re in Alameda County or any other location in California, each is a separate crime. The difference between assault and battery can be boiled down to intent and impact. In simple terms, assault is an attempt to use force or violence against another person, while battery is actually using force or violence against another person. Assault typically doesn’t involve physical contact, while battery does.

Let’s first take a look at California assault laws, and then circle back to battery laws.

Assault as Defined by the California Penal Code

According to the California Penal Code, assault is “an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.” An assault conviction is a misdemeanor that carries a maximum jail sentence of six months and a maximum fine of $1,000. However, California law carves out certain exceptions that carry a maximum one-year jail sentence and a maximum $2,000 fine. Those exceptions pertain to the person who is on the receiving end of the assault.

For example, if Charlie gets mad at his neighbor, Ralph, and throws a punch and misses, Charlie could be charged with assault. However, let’s say that Charlie and Ralph aren’t neighbors, and that Charlie takes a swing at Ralph in public. If Ralph is acting in one of the following roles, then Charlie could receive the longer jail sentence and higher fine:

  • Peace officer, traffic officer, code enforcement officer, animal control officer, or search and rescue team member
  • Firefighter
  • Doctor or nurse helping in an emergency outside of a healthcare setting
  • EMT or paramedic
  • Lifeguard
  • Highway worker
  • School employee
  • Servicemember, if the assault is because of a bias against the servicemember

Even if Ralph isn’t acting in one of those roles, Charlie may be subjected to the longer jail sentence and higher fine if he strikes out at Ralph in one of these places:

  • School property
  • Park property
  • On a bus, taxi, train, streetcar, or cable car, or in the parking lot or station of a transportation provider

If you’ve been charged with assault in Alameda County, it’s critical that you find an Oakland assault attorney to represent you. Even though assault is a misdemeanor, your Oakland assault lawyer can work to have the charge dismissed or to substitute informal probation for a jail sentence or fine. Your Alameda County assault attorney may even achieve an agreement whereby the charges are dismissed once probation is successfully completed.

Battery as Defined by the California Penal Code

According to the California Penal Code, battery is defined as “any willful and unlawful use of force or violence upon the person of another.”

In other words, Charlie could be charged with battery if his punch lands and Ralph goes down – or even if Ralph stays standing. If Ralph isn’t injured, Charlie may face a simple battery charge. If he’s convicted of this misdemeanor, Charlie can be sentenced to up to six months in jail and made to pay a fine of up to $2,000.

As with assault, the penalties for a battery conviction increase if Charlie hits Ralph while Ralph is serving in the capacity of a:

  • Peace officer, traffic officer, code enforcement officer, animal control officer, security officer, process server, or search and rescue team member
  • Firefighter
  • Doctor or nurse helping in an emergency outside of a healthcare setting
  • Emergency medical technician
  • Lifeguard
  • Highway worker
  • School employee
  • Servicemember, if the assault is because of a bias against the servicemember

If Ralph isn’t seriously injured and Charlie is convicted, Charlie may be sentenced to up to a year in jail and a fine of up to $2,000. The same holds true if Ralph is an official in a school or professional sporting event. The potential punishment is identical if the incident occurs in one of these places:

  • On school property
  • On park property
  • On the grounds of a public or private hospital
  • On the property of a transportation provider, such as a bus or train station

But let’s say that Ralph winds up being injured. If Ralph is serving in one of the roles outlined above, it’s no longer simple battery. It’s no longer automatically a misdemeanor. Instead, the crime is a wobbler, meaning that it can be charged as either a misdemeanor or a felony. If Charlie is convicted of felony battery, he can be sentenced to 16 months, or two or three years in prison – along with a fine.

In the Charlie and Ralph scenario, battery may also a wobbler if Ralph is a passenger, agent, or operator of a taxi, bus, cable car, or train. If Ralph isn’t injured and Charlie is convicted, the misdemeanor sentence can be up to one year in jail and a fine of up to $10,000. If Ralph is injured, it becomes a wobbler, with a felony conviction carrying a prison sentence of 16 months, two years, or three years – plus a fine of up to $10,000.

If Charlie is in jail and attacks Ralph, a custodial officer, then Charlie is facing felony charges. A conviction for battery against a custodial officer carries a jail sentence of 16 months, two years, or three years.

Let’s go one step further. Even if Charlie and Ralph are simply neighbors, if Ralph is seriously injured in the altercation, the resulting aggravated battery charge is a wobbler, and a felony conviction can result in a prison sentence of two, three, or four years.

If you’ve been charged with battery, time is of the essence. It’s in your best interest to retain an Alameda County battery attorney as soon as possible. Your Alameda County battery lawyer is in the best position to work with the district attorney to dismiss or reduce the charges. For example, your Oakland battery attorney may be able to tilt a wobbler away from a felony and toward a misdemeanor. Your lawyer may be able to work a deal so that you can avoid jail or prison time and instead receive probation. An experienced attorney understands the stakes and knows how to get results.

Battery While Incarcerated

Those serving time in jail or prison can also be charged with battery. According to California law, an inmate who is convicted of “gassing” a law enforcement officer or jail employee is guilty of aggravated battery and can be sentenced to two, three, or four years in jail or prison. If someone is incarcerated and is accused of battery against a non-inmate, then they are facing a wobbler. If convicted of misdemeanor battery, then they can receive a jail sentence of up to one year. If convicted of felony battery, then they can receive a jail or prison sentence of 16 months, two years, or three years.

Domestic Battery

California law enumerates a few other types of battery, one of which is domestic battery. Domestic battery occurs when the person injured is an “intimate partner.” The law defines “intimate partner” quite broadly, to include:

  • Your wife, husband, ex-wife, or ex-husband
  • The person you live with or the person you used to live with
  • Your fiancé, fiancée, former fiancé, or former fiancée
  • The person you’re dating or the person you previously dated
  • The parent of your child

If you are convicted of domestic battery, you are subject to a jail sentence of up to one year and a fine of up to $2,000. With the help of an Alameda County battery attorney, you may be granted probation instead of jail time or your sentence may be suspended. If you are granted probation or a sentence suspension, California law says that you must successfully complete a batterer’s treatment program that lasts at least a year.

If your attorney has achieved probation or a suspended sentence on your behalf, California law says that the judge may order you to make payments to a battered women’s shelter instead of paying a fine. If you’re ordered to make payments, the total amount can be no more than $5,000. The statute says that someone convicted of domestic battery and given probation is also responsible for paying the counseling and medical expenses of the victim. In fact, California prioritizes paying victim restitution and child support over making payments to a battered women’s shelter. Moreover, in the case of spousal battery, it specifies that your separate property must be used to make payment before tapping into community property.

If you’re facing domestic battery charges, you need a seasoned Alameda County battery attorney by your side. Domestic battery is one of several charges in the domestic violence arena, and a domestic violence conviction can have long-lasting consequences. For example, you can lose your right to own or possess a gun and you can lose your right to have custody of your children. Background checks will reveal a criminal record of domestic violence, which can negatively impact your ability to get a job, rent an apartment, or maintain a professional license. Your Oakland battery lawyer can work to have the charges dropped or reduced. If you’re convicted, they can advocate for probation instead of jail or prison time.

Sexual Battery

Sexual battery is a third type of battery crime enumerated in the California Penal Code. The law specifies a number of different types of sexual battery, but misdemeanor sexual battery is touching an “intimate part” of someone for a sexual purpose against the person’s will. A conviction can result in punishment of up to six months in jail and a fine of up to $2,000. But if Charlie is convicted of sexual battery against Ralph, and Charlie is Ralph’s employer, then the fine goes up to a maximum of $3,000.

Under some circumstances, sexual battery becomes a wobbler, meaning that it can be charged as either a misdemeanor or a felony. For the following circumstances, a misdemeanor conviction can lead to a jail sentence of up to one year and a fine of up to $2,000. A felony conviction can lead to a prison sentence of two, three, or four years, and a fine of up to $10,000 if:

  • The person touched is restrained by the accused or an accomplice
  • The person touched is institutionalized and seriously disabled or medically incapacitated
  • The person touched doesn’t realize the touching is sexual and the alleged perpetrator falsely states that the touching is necessary, as might be the case if Charlie is a doctor and Ralph is his patient
  • The person is forced to touch their own intimate parts or the intimate parts of someone else while being restrained or institutionalized

A sexual battery conviction is serious. In addition to jail or prison time and a sizeable fine, someone convicted of sexual battery – whether a misdemeanor or a felony – is required to register as a California sex offender.

If you’ve been charged with sexual battery, your first call should be to an Alameda County battery attorney at Silver Law Firm. Your Oakland battery lawyer acts as your advocate every step of the way, starting with your initial police interview. They have access to the evidence collected by law enforcement and understand how to find the weaknesses in the prosecution’s case. Silver Law Firm is in the best position to argue to have the charges dropped, negotiate a plea agreement, or seek the least restrictive sentencing.

Don’t let time slip away. Call Silver Law Firm today for a free, no-obligation consultation.



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