Misdemeanor Battery and Assault (Penal Code §§ 242 and 240)

The misdemeanor criminal offense of battery is outlined in Penal Code § 242  “A battery is any willful and unlawful use of force or violence upon the person of another.”

The elements of a battery are:

  1. The defendant used force or violence upon the person of another; and
  2. The force was willful and unlawful.

This crime can be designated to any person who is not a spouse of in a dating relation. It can be between neighbors, bar patrons, or even complete strangers. 

Example 1: Jamie and Erik work at the same restaurant. Erik hates Jamie and screams at Jamie across the restaurant. Then, Erik rushes Jamie and grabs Jamie’s arm hard and squeezes. The act of violence left a bruise. This is a form of battery. Erik used force by squeezing Jamie’s arm and the force was willful.

Example 2: Larry and Ronald are in a fight. Larry hits Ronald and Ronald hits Larry. Both could be arrested or cited for battery. Their attorneys would likely argue this was mutual combat and attempt to get the case dismissed.

A person can also be charges with just assault under Penal Code § 240. “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

The elements of an assault are:

  1. Defendant unlawfully committed an act by which its nature would probably and directly result in the application of physical force on another person.
  2. At the time the act was committed, the defendant had the present ability to commit a violent injury on a person.

Example 1: Arnie and Paul are not friends. Arnie sees Paul in his college class and waits for him to leave class. Arnie hides in the bushes and when Paul gets close, Arnie attempts to jump on him and hurt him. Instead, Arnie overcompensates the leap and ends up falling on t6he concrete. Here, Arnie can still be charged with assault because he was trying to commit a violent injury on Paul and if he succeeded could have really hurt him.

Example 2: Elizabeth and April are friends. One day Elizabeth was joking around and punched the wall next to April. Depending on how this case is argued, Elizabeth may still be criminally implicated for assault. April tells the officers she does not want to press charges. The prosecutor still files without April’s consent. An attorney would likely argue that this was never going to result in application of physical force, and it would not cause violent injury. An attorney should use mitigation such as an investigative report about April’s point of view, anger management classes, and the friendship between April and Elizabeth.