Assault is defined in Penal Code Section 240 as “…an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault often is charged at the same time as a Battery, which is defined in Penal Code Section 242. Penal Code Section 242 states, “A battery is any willful and unlawful use of force or violence upon the person of another.”
Assault is commonly referred to as battery that didn’t get completed. If someone tries to batter another person but isn’t successful it’s an assault. The District Attorney charges both crimes in an effort to convict the defendant of at least one crime. For example, if someone swings his fist at another person but misses, it’s an assault but not a battery because no touching occurred.
Fights that occur often result in charges of assault and battery. There might be lots of swings and misses and a few punches connect resulting in the “unlawful use of force or violence upon another”. The violence has to be “unlawful”. If an assault or battery is justified then it’s not unlawful. Righteous use of self-defense or defense of another is a defense to assault and battery. That defense makes the battery lawful and within the acceptable limits of violence allowed by the law.
The old saying that “Sticks and stones may break my bones, but words will never hurt me” applies to the crimes of assault and battery. Insulting words, no matter how offensive, are not a defense to violations of Penal Code Sections 240 and 242. However, if the words threaten immediate harm or great bodily injury or trespass onto land or property, the words may establish the defense of self-defense. The jury instruction CalCrim 917 sets out this statement of law.
There are many variations of assault and battery. Conduct which is more serious than a simple assault and battery under Penal Code Sections 240 and 242 can be charged with a variety of felony charges. Some of these are assault with a deadly weapon or by means of force likely to produce great bodily injury (Penal Code Section 245(a)), assault on a police officer or other person engaged in their duties (Penal Code Section 241), or a whole variety of other assaultive crimes. All of these more specific crimes have their roots in the simple assault and battery concept.
Anyone charged with any kind of assaultive behavior needs to have an attorney who understands what defenses apply. Having an attorney who really “gets” how the basic foundation of the crime charged controls the entire case is essential to a successful defense. At the Law Offices of Rudolph E. Loewenstein we have handled hundreds of assault and battery cases over the years. While each comes with its own unique circumstances, the underlying law is the same. And no one understands that law better than a Board Certified Specialist in Criminal Law, someone certified by his peers as having specialized knowledge in the area of criminal law. This is the only person you should trust to fully understand how the law applies to your individual circumstances.