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What's the difference between assault and battery?

Many times, you may hear someone use the phrase "assault & battery" as though it is one crime. Actually, in California, assault and battery are two distinct crimes. According to California Penal Code section 240, "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another"; and per section 242, "A battery is the willful and unlawful use of force or violence upon the person of another."

The important distinction is that an assault is an action that may inflict physical harm or unwanted touching on someone else and a battery is the actual infliction of force or violence on someone else.

ASSAULT is a misdemeanor in California. The penalties may include misdemeanor probation, up to 6 months in county jail, and/or a fine of up to $1,000. However, if the victim belongs to certain professional categories, the penalties increase to a maximum of 1 year in county jail and a fine of up to $2,000. Those professions include, but are limited to, police officers, firefighters, paramedics or emergency medical technicians, traffic officers, and doctors/nurses providing emergency medical care.

PC 245(a)(1) – Assault with a deadly weapon, such as knife or gun, is a “wobbler” in California. It can be charged as a misdemeanor, with a penalty of up to 1 year in county jail; or it can be charged as a felony, with a potential jail sentence of 2, 3, or 4 years.

PC 217.1(a) – Assault on a public official consists of a simple assault against a public official in retaliation for or to prevent the performance of official duties. Public officials include judges, prosecutors, public defenders, and elected and executive officers of local, state, or federal governments. This offense is also a “wobbler. If charged as a misdemeanor, the penalty is up to 1 year in county jail. If charged as a felony, the sentence can be 16 months, 2 years, or 3 years.

BATTERY may be a misdemeanor or a felony in California. If charged as a misdemeanor (simple battery), the penalties may include misdemeanor probation, up to 6 months in county jail, and/or a fine of up to $2,000. However, if the battery results in serious injury to the victim, it may be charged as a felony, which can lead to 2, 3, or 4 years in state prison.

PC 243(d) – Battery causing serious bodily injury, sometimes referred to as “aggravated battery”, is another “wobbler”. If charged as a misdemeanor, the penalty is up to 1 year in county jail. If charged as a felony, the sentence is 2, 3, or 4 years in state prison.

PC 243(b) & 243(c)(2) – Battery on a peace officer that does not result in serious bodily injury can have a sentence of up to 6 months in county jail. But, if an injury does occur, the crime becomes a “wobbler” with a potential felony jail sentence of 16 months, 2 years, or 3 years

PC 243 (e)(1) – Domestic battery is a battery committed against a current or former spouse, a current or former cohabitant (roommate, live-in boyfriend/girlfriend), current or former fiancé, or another person with whom the offender had an intimate or romantic relationship. This is a misdemeanor that carries a fine of up to $2,000 and up to 1 year in county jail.

PC 243.4 – Sexual battery is a separate and distinct crime from simple battery, aggravated battery, or domestic battery. This crime involves the touching of an “intimate part” of another person for purposes of sexual gratification, arousal or abuse. The type of victim will determine if it is charged as a felony or as a misdemeanor. For example, if the victim was a minor, an institutionalized person, unlawfully restrained, or seriously disabled or medically incapacitated, then the offense may be charged as a felony. Misdemeanor sexual battery carries a maximum sentence of 6 months or 1 year in county jail, depending on the circumstances. Felony sexual battery carries a sentence of 2, 3, or 4 years in state prison. Whether convicted of a felony or misdemeanor sexual battery, the offender is subject to California’s sex offender registration requirements.

The above is not a full list or explanation of all categories of victims or the different types of assault or battery. Instead, this is to provide a general response to the most commonly asked questions about the penalties for certain offenses and why some are charged as misdemeanors and others are charged as felonies.