When you’re facing charges of simple assault or battery in San Diego County, a conviction can result in extremely negative consequences, including jail time, informal probation, fines and other penalties and adverse consequences. If you’re facing an investigation based on allegations that you committed either crime, avoid making any statements to law enforcement and immediately contact an experienced criminal defense attorney.

I’ve successfully represented thousands of people charged with serious criminal offenses, including assault and battery. Because my experience comes from my work as a well-regarded California prosecutor, I bring my insider’s knowledge of prosecutorial strategies to building the strongest possible criminal defense in these cases. Sometimes I’m even able to get your case dismissed before formal charges have been filed.

Below is what you need to know about these two charges. If you have questions after reading this, get in touch for a free case evaluation. Whether you retain me or not, I’ll make sure you understand your charges, the potential consequences of conviction, and the legal options available to you.

Simple Assault vs. Battery

While people often confuse these two criminal offenses, the distinction is actually fairly simple. A simple assault may occur even when there is no physical touching or contact with the complaining witness. By contrast, a battery requires some physical contact with the alleged victim or some item closely connected with the alleged victim, such as an item in the alleged victim’s hands.

Put another way, an assault may be viewed as an attempted battery, because despite an attempt to make physical contact or exert force on the person of another, the attempt is unsuccessful. While a battery entails at least some type of violent, offensive or painful contact, an assault may be committed even when no contact occurs. For example:

  • If I swing my fist to punch you in anger but fail to connect, I have committed an assault, but not a battery.
  • If I swing my fist in anger to punch you and connect with your face, I have committed both an assault and a battery.

Since simple assault is a lesser included offense of battery, an assault occurs every time there is a battery. However, you cannot be sentenced for both offenses, so the prosecutor would typically seek charges for the greater offense, which is battery.

A battery under California Penal Code Section 242 is essentially a willful and unlawful touching that is either offensive or harmful. The degree of contact required to constitute a battery may be very slight and need not cause injury or pain. If you spit on someone, for example, the contact is likely to be mild, painless and cause no injury, but because the contact is offensive, this mild contact still constitutes a battery.

Consequences of Conviction

In San Diego, a guilty verdict or plea on a charge of battery can result in substantial penalties, including six months in county jail, maximum $2,000 fine plus court fees, participation in a batterer anger management program and community service. If the battery results in serious injury, you may be charged with aggravated battery, which may result in much more severe penalties.

Assault, like other offenses that don’t require actual physical contact or an injury of any kind, is especially prone to false allegations. Many people involved in an ordinary marital dispute are arrested when one spouse tells the police something like, “I was so afraid because he came at me and I thought he was going to hurt me.” While this type of vague allegation should be insufficient to support a conviction, it may lead to an arrest and the filing of charges against you.

While the act that constitutes the assault must be intentional rather than accidental, it need not result in any injury, nor do you need to have intended to cause injury or violate the law. However, the act that is alleged to be an assault must be of the type that one would reasonably anticipate would cause injury. If you attempt to kick, slap or punch someone who dodges the blow, these would all be considered assaults.

An assault is a misdemeanor that may result in severe penalties, including incarceration in county jail up to six months, fines of up to a maximum of $1,000, successful completion of a batters’ program and/or participation in community service program.

Other factors can enhance the seriousness of the charges and result in more severe penalties, such as:

Defense Strategies

Whether you’re charged with simple assault, aggravated assault, battery or aggravated battery, you may incur a lasting damage to your life and future. I’ve successfully defended thousands of people throughout Southern California charged with serious crimes and may be able to assert a number of effective defenses to obtain a substantial reduction in the charges against you or seek dismissal of the charges, including those listed below.

Assault Defenses

  • No Present Ability: While no actual contact or force is required for an assault to take place, the attempt must be accompanied by the present ability to carry out the act alleged. If during a telephone conversation, you tell the listener, “I am going to reach through this phone and knock your block off,” this does not constitute assault because there is no present ability for you to act on that threat.
  • No Intent: The prosecutor must prove beyond a reasonable doubt that you actually intended to engage in the act alleged to be an assault. If you tell Jim you want to “blow his head off,” but you do not possess or own a gun, this is not an assault because you obviously do not really intend to commit the act.
  • Self Defense or Defense of Others: I may argue that you had a reasonable and honest belief that someone was about to seriously injure you or someone close to you. In such a situation, you have a right to defend yourself (within limits).
  • False or Unsubstantiated Allegations: I make every attempt to expose false allegations that may result from bias, jealousy or other improper motivations. Because there is no physical contact, this type of allegation is extremely likely to be the product of exaggeration or fabrication.

Battery Defenses

  • Consent: Many times the contact or imposition of force associated with a battery is based on the alleged victim’s consent. Contact sports, wrestling or roughhousing and receiving surgical treatment are obvious examples. However, the nature of the force or contact cannot exceed the scope of the consent.
  • No Intention (i.e., Accidental Force or Contact): The prosecutor may not obtain a conviction of battery for a mere accidental imposition of force or contact. The fact that you bump into someone while walking through a crowd or inadvertently shove someone because you do not see him or her in your path doesn’t constitute battery.
  • Reasonable Right of Parental Discipline: A parent has a right to use reasonable corporal punishment on his or her child.

I diligently seek dismissal or acquittal of charges for my clients. If the evidence against you makes this impossible, I tenaciously negotiate with the prosecutor to obtain a reduction of charges or less severe penalties. If you’re facing pending charges, never simply plead guilty through the public defender. Retain an attorney with the time and resources to make protecting your future a priority.

Never discuss the situation with law enforcement or prosecutors until you’ve consulted an experienced criminal defense attorney.  If the police try to speak to you, assert your right to a lawyer and decline to answer questions.

If you have any questions after reading this, contact me for a free consultation where we’ll go over your charges and discuss your legal options.