Is Assault and Battery a Felony in California? Penal Code 240 and 242 Explained
The short answer: simple assault under Penal Code section 240 and simple battery under Penal Code section 242 are misdemeanors in California. The charge becomes a felony, or a wobbler that can be filed either way, when a weapon or force likely to cause great bodily injury is involved under Penal Code section 245, when the battery causes serious bodily injury under Penal Code section 243, subdivision (d), or when the victim is a peace officer or other protected person and is injured. Most bar fights, parking lot shoving matches, and family arguments that end in a call to police in Riverside, San Bernardino, Fontana, Pomona, or Long Beach are charged as misdemeanors, but the facts the officer writes down on the night of the arrest decide which section the district attorney files.
Assault and battery are two different crimes. People use the phrase as one thing. In California they are separate offenses with separate elements. Assault is an attempt to use force; battery is the actual use of force. You can be convicted of assault without ever touching anyone, and you can be charged with battery for a touch that caused no injury at all. Understanding which one you are charged with, and why, is the first step in defending the case.
What the Prosecutor Must Prove for Assault Under Penal Code 240
The elements of simple assault. Penal Code section 240 defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on another person. Under CALCRIM 915, the prosecutor must prove beyond a reasonable doubt that (1) you did an act that by its nature would directly and probably result in the application of force to a person, (2) you did that act willfully, (3) when you acted, you were aware of facts that would lead a reasonable person to realize the act would directly and probably result in the application of force, and (4) when you acted, you had the present ability to apply force. No injury and no actual contact is required.
The mental state. Assault is a general intent crime. The California Supreme Court held in People v. Williams (2001) 26 Cal.4th 779 that the prosecutor does not have to prove you intended to injure anyone, only that you knew the facts that made a battery the probable result of your act. Earlier, People v. Colantuono (1994) 7 Cal.4th 206 and People v. Rocha (1971) 3 Cal.3d 893 established that assault does not require a specific intent to cause injury. This matters because "I didn't mean to hurt him" is not, by itself, a defense to assault.
Present ability. A swing that misses, a shove that is blocked, or a thrown object that falls short can all be assaults, because the ability to apply force existed when the act was done. An empty threat from across a parking lot with no ability to follow through is not an assault, although it may be charged as criminal threats under Penal Code section 422 if it meets the elements in our guide to criminal threats in California.
What the Prosecutor Must Prove for Battery Under Penal Code 242
The elements of simple battery. Penal Code section 242 defines battery as any willful and unlawful use of force or violence upon the person of another. Under CALCRIM 960, the prosecutor must prove that (1) you willfully touched another person, and (2) the touching was done in a harmful or offensive manner. The slightest touching can be a battery if it is done in a rude or angry way, and the touching can be done indirectly through an object or through the person's clothing.
No injury is required. This is the fact that surprises most clients. Pushing someone out of a doorway, grabbing a phone out of a hand, or spitting on someone can all be charged as battery in California. Injury changes the charge level, as explained below, but the base offense is complete with any offensive touching.
Who the victim is changes the section. Battery on a spouse, cohabitant, dating partner, or the parent of your child is charged under Penal Code section 243, subdivision (e)(1), and carries the domestic violence probation terms in Penal Code section 1203.097, as explained in our guide to domestic violence charges in Orange County. Battery on a peace officer, firefighter, emergency medical technician, or other protected worker engaged in duties is charged under Penal Code section 243, subdivision (b) or (c). Battery on school grounds, in a hospital, or against a sports official has its own provisions.
When Assault or Battery Becomes a Felony
Assault with a deadly weapon or force likely to produce great bodily injury. Penal Code section 245, subdivision (a)(1) covers assault with a deadly weapon other than a firearm, and subdivision (a)(4) covers assault by means of force likely to produce great bodily injury. Both are wobblers punishable by up to one year in county jail as a misdemeanor or by two, three, or four years in state prison as a felony. A deadly weapon can be almost any object used in a way capable of causing death or great bodily injury, including a bottle, a vehicle, or a tool. Fists alone can support the force likely charge when the beating is severe.
Battery with serious bodily injury. Penal Code section 243, subdivision (d) makes battery a wobbler when it causes serious bodily injury, which includes a concussion, a broken bone, a wound requiring stitches, or a serious disfigurement. Prosecutors in the Inland Empire and Los Angeles County commonly file both a section 245 count and a section 243, subdivision (d) count from the same fight, then negotiate down.
Strikes and great bodily injury enhancements. An assault with a deadly weapon conviction is generally a serious felony under Penal Code section 1192.7, subdivision (c), which counts as a strike. If the victim actually suffered great bodily injury, the prosecutor can add the enhancement in Penal Code section 12022.7, which adds prison time and makes any felony a strike. These are the charges that turn a fight into a life-changing case, and they are also the charges where a felony reduction under Penal Code section 17, subdivision (b), explained in our guide on reducing a felony to a misdemeanor, becomes the central goal.
Assault with a firearm and on protected persons. Assault with a firearm under Penal Code section 245, subdivision (a)(2) is a felony, and assault on a peace officer or firefighter under Penal Code section 245, subdivision (c) carries higher terms. Battery on a peace officer causing injury under Penal Code section 243, subdivision (c)(2) is a wobbler.
Defenses That Actually Work in Assault and Battery Cases
Self-defense and defense of others. California law permits reasonable force to defend yourself or another person from an imminent threat of harm, as set out in Penal Code section 692 and Penal Code section 693 and instructed under CALCRIM 3470. The force must be reasonable in relation to the threat, and you may stand your ground with no duty to retreat. Self-defense is the most common defense in bar fight and neighbor dispute cases, and it is decided largely by who the jury believes about who started it, which is why witness statements and video are gathered immediately.
Mutual combat and the initial aggressor rule. A person who starts a fight or agrees to fight generally cannot claim self-defense unless he clearly communicated that he was stopping and tried to withdraw. Prosecutors use this rule to defeat self-defense claims in fights that both sides joined. The defense answer is often that the other side escalated to a level of force that the client never agreed to.
Accidental or non-willful contact. Battery requires a willful touching. Contact during a crowded event, an attempt to get past someone, or a reflexive reaction to being grabbed is not a battery if the touching was not deliberate. The officer's report will rarely describe it that way, and the defense has to reconstruct what happened from video and witnesses.
Consent. Contact in a sporting event, a consensual scuffle between friends, or a medical procedure is not an unlawful use of force. Consent has limits, and it is not a defense to serious injury inflicted outside the rules of the activity.
Insufficient evidence and credibility. Many assault and battery cases rest on the word of one complaining witness with no injury, no video, and no independent witness. Our article on what makes a criminal case weak explains the problems that lead prosecutors to reduce or dismiss, and our guide to how prosecutors build criminal cases explains what they need to prove it.
Unlawful arrest or interrogation. Statements you made to police after an arrest without proper advisements can be suppressed under Miranda v. Arizona (1966) 384 U.S. 436, and evidence from an unlawful search can be suppressed under Penal Code section 1538.5. Our guides on your rights when questioned by police and the 1538.5 motion cover both.
Penalties for Simple Assault and Battery
Simple assault. Penal Code section 241, subdivision (a) sets the penalty for simple assault at a fine of up to $1,000, imprisonment in county jail for up to six months, or both. It is a misdemeanor only.
Simple battery. Penal Code section 243, subdivision (a) sets the penalty for simple battery at a fine of up to $2,000, imprisonment in county jail for up to six months, or both. It is also a misdemeanor only.
Probation and program terms. Most first-offense simple assault and battery cases in Riverside County, San Bernardino County, and Los Angeles County resolve with probation, an anger management or similar course, a stay-away order, restitution for any medical bills, and community service, with little or no jail. The exact terms depend on the courthouse, the injury, and the record. Misdemeanor probation is generally capped at one year under Penal Code section 1203a.
Diversion. Simple assault and battery are generally eligible for misdemeanor diversion under Penal Code section 1001.95, which allows a judge to postpone the case, impose conditions, and dismiss the charge on completion. Domestic battery under Penal Code section 243, subdivision (e) is excluded. Our guide to misdemeanor diversion under Penal Code section 1001.95 explains eligibility and terms. Civil compromise under Penal Code section 1377 and Penal Code section 1378 is another path when the injured person is willing to accept restitution.
Collateral Consequences of an Assault or Battery Conviction
Firearms. A misdemeanor assault or battery conviction under Penal Code section 240, Penal Code section 242, or Penal Code section 245 triggers a 10-year California firearm prohibition under Penal Code section 29805. A felony conviction triggers the lifetime prohibition in Penal Code section 29800. Many clients care about this more than the jail exposure.
Immigration. Simple assault and battery are generally not crimes involving moral turpitude, but assault with a deadly weapon and battery with serious injury can be, and a felony assault with a sentence of a year or more may be an aggravated felony as a crime of violence. Defense counsel must advise on these consequences under Penal Code section 1016.3, and the charge selected in a plea agreement often matters more than the sentence for a non-citizen client.
Employment, licensing, and custody. A conviction appears on background checks until dismissed under Penal Code section 1203.4, as explained in our guide on how to expunge a criminal record. Professional licensees may have reporting obligations. When the incident involved a family member or occurred in front of a child, the arrest can also affect custody and lead to a restraining order request, as explained in our guides on what happens if a restraining order is filed against you and our child custody practice.
What to Do After an Assault or Battery Arrest
Say nothing about the facts. Most assault cases are decided on who started it. Telling the officer your side at the scene, without counsel and while upset, usually produces a statement that admits the touching and skips the self-defense facts. Our guide on whether you can talk your way out of charges explains why that rarely works.
Preserve the evidence. Bar, restaurant, and parking lot cameras often overwrite footage within days. Get names and numbers for anyone who saw the incident, photograph your own injuries, and keep the clothing you were wearing. Text messages before and after the incident can also be decisive, as explained in our article on whether police can use your text messages.
Obey any protective order. In a domestic case the court will issue a criminal protective order at arraignment. Contacting the protected person, even to apologize, is a new offense under Penal Code section 273.6.
Go to court. A misdemeanor assault or battery arraignment can usually be handled by your attorney under Penal Code section 977, but missing the date brings a bench warrant, as explained in our guide on what happens if you miss court. Cases from Riverside, Moreno Valley, and Corona are generally heard at the Riverside Hall of Justice; cases from San Bernardino, Fontana, Rialto, and Colton at the San Bernardino Justice Center or the Fontana courthouse; cases from Rancho Cucamonga, Ontario, and Upland at the Rancho Cucamonga courthouse; and cases from Pomona, Long Beach, Torrance, and Van Nuys at those Los Angeles County courthouses. Confirm the assignment on the court's website. We defend clients in Riverside, San Bernardino, Fontana, Rancho Cucamonga, Pomona, and Long Beach.
Frequently Asked Questions
Is simple assault a felony in California?
No. Simple assault under Penal Code section 240 is a misdemeanor punishable under Penal Code section 241 by up to six months in county jail and a fine of up to $1,000. Assault becomes a wobbler or felony under Penal Code section 245 when a deadly weapon, a firearm, or force likely to produce great bodily injury is involved.
Is simple battery a felony in California?
No. Simple battery under Penal Code section 242 is a misdemeanor punishable under Penal Code section 243, subdivision (a) by up to six months in county jail and a fine of up to $2,000. Battery becomes a wobbler under Penal Code section 243, subdivision (d) when it causes serious bodily injury, and battery on a peace officer with injury is also a wobbler.
Can I be charged with battery if I did not hurt anyone?
Yes. Battery requires only a willful touching done in a harmful or offensive manner, and no injury is required. Pushing, grabbing, or spitting can all be charged under Penal Code section 242.
What is the difference between assault and battery in California?
Assault is the attempt; battery is the contact. Assault under Penal Code section 240 is an act that would probably result in force being applied, with the present ability to do it, even if no contact occurs. Battery under Penal Code section 242 is the actual willful and unlawful use of force on another person.
Is self-defense a defense to assault and battery in California?
Yes, when the force was reasonable. Penal Code section 692 and Penal Code section 693 allow reasonable force to resist an imminent threat, and there is no duty to retreat. The defense is lost if you started the fight or used more force than the situation called for.
Can an assault or battery charge be dismissed through diversion?
Often, for simple assault and battery. Misdemeanor diversion under Penal Code section 1001.95 is available for most misdemeanors, and completion results in dismissal. Domestic battery under Penal Code section 243, subdivision (e) is excluded, and felony assault cases are not eligible for misdemeanor diversion.
Talk to an Assault and Battery Defense Lawyer
Gramling Law Group defends assault and battery charges at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Pomona, Long Beach, Torrance, and Van Nuys courthouses, the Orange County justice centers, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you know the cost before you commit. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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