Assault & Battery
San Diego Assault and Battery Criminal Defense Attorney / Simple Assault Lawyer
If you are charged with assault or battery in San Diego or the surrounding areas of Southern California, a conviction can adversely impact many facets of your life, including your family relationships, career, financial security, immigration status, housing options and other long-term consequences. A conviction of simple assault or battery can also result in incarceration. Whether you are under the cloud of a criminal investigation or you have been arrested, you should immediately speak to an experienced San Diego criminal defense lawyer.
At the Law Office of Isaac Blumberg, we have successfully represented clients in thousands of criminal defense matters throughout Southern California. Mr. Blumberg often seeks to have evidence suppressed that is obtained in violation of the 4th Amendment or other constitutional rights of the accused, and he challenges the reliability and sufficiency of the government’s evidence. Mr. Blumberg is committed to zealously advocating for the best outcome for his clients. He has built his reputation as a criminal defense attorney who will not hesitate to take a case to trial. He has tried almost thirty criminal cases to juries throughout Southern California.
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Understanding Assault under Penal Code Section 240
Although many people use the terms “assault” and “battery” interchangeably in ordinary conversation, the two terms refer to distinct criminal offenses. The basic distinction between these crimes is that a person may be charged with an assault without any physical contact with the complainant. By contrast, a battery requires some form of physical contact or exertion of force on the complainant or an item closely associated with the alleged victim, such as an item that he or she is holding.
Another way to understand the relationship between an assault and battery is that an assault can be viewed as an attempted battery because the accused fails to make physical contact or exert force on another person. While every battery will also be an assault, an assault may occur even when there is no battery. Battery involves exerting some form of painful, offensive of violent contact whereas an assault amounts to an unsuccessful attempt to commit such contact.
Definition of Assault
California Penal Code Section 240 (PC Section 240) defines assault as including the following elements:
- Willful conduct likely to exert physical force on someone else;
- The accused was aware of facts that would lead a reasonable person to believe that the conduct would probably and directly exact such force on the other person; and
- At the time of the conduct, the accused had the ability to exact force against the person.
Examples of an assault might include:
- A teenager throwing rocks toward a neighbor.
- A man swings to punch a person with whom he is arguing, but the punch misses.
- A person knocks your grocery bags out of your arms.
Penalties for Assault
If you are charged with assault under California law, you can be convicted of a misdemeanor. The offense carries a maximum jail term of up to six months and/or a fine up to $1,000.
Simple Battery under California Penal Code Section 242
Battery is defined by PC Section 242 as the willful and unlawful use of violence or forces against another person. While the term “battery” may elicit images of barroom brawls or vicious beatings, a battery may occur even when the alleged victim does not suffer any form of injury. While physical contact with the victim is required, this contact need only be some form of offensive touching. However, a more serious form of battery under PC 243(d) Battery Causing Serious Bodily Injury may be charged if the physical contact results in serious injury.
As explained above, battery is distinguishable from assault because it requires the successful exacting of physical force on another. The following examples distinguish battery from assault:
Example 1: During a fist fight, Bill throws a punch at Mike but misses. When Bill swings again he connects with Mike’s jaw. The first punch would merely be an assault while the second punch would be both an assault and battery. Because assault is a lesser included offense of battery, the prosecutor typically would charge a battery for the second punch.
Example 2: A woman spits at a man because she is offended by his rude comment. The woman commits a battery if the spit hits the man but only an assault if she misses.
This form of battery, which is also referred to as “simple battery”, constitutes a misdemeanor under PC 242. If a person is convicted of this offense, the crime carries a maximum period of incarceration of up to six months in jail and a maximum fine up to $2,000.
The penalty for a battery can be far more severe if the alleged victim is a police officer, EMT, fireman or other public service person who suffers ANY form of injury. Battery under these circumstances constitutes a wobbler, so it can be charged as a misdemeanor or felony.
Battery Causing Serious Bodily Injury (Penal Code Section 243(d))
If a person commit a battery that causes serious injury to the alleged victim, the accused will be subject to the more stringent penalties under PC Section 243(d), also referred to as “Aggravated Battery.” An injury must constitute a significant impairment of the accused victim’s physical condition. This type of injury might include a concussion or fracture. This offense can be charged as either a misdemeanor or felony. If the offense is charged as a misdemeanor, the penalty can result in a sentence of up to one year in county jail. A felony conviction for aggravated battery carries a sentence of 2, 3 or 4 years in state prison.
Defenses to Assault and Battery Charges
When an accused is charged with assault or battery in San Diego, experienced San Diego criminal defense attorney Isaac Blumberg provides persuasive defense by thoroughly investigating the facts and police conduct. He seeks suppression of improperly obtained incriminating statements while challenging the sufficiency and reliability of the government’s evidence. Some of the specific defenses to assault and battery that Mr. Blumberg might assert include the following:
- Lack of the proper intent
- Self-defense or defense of others
- Reasonable act of discipline by a parent (spanking)
- Inability to carry out the assault
- False accusations
Whether you are the target of a law enforcement investigation or you have been arrested and charged with assault or battery, you should immediately assert your right against self-incrimination and right to counsel. Do not talk to the police until you have an experienced San Diego Criminal Defense Attorney present to protect your interests. Mr. Blumberg will tenaciously defend your constitutional rights while seeking a dismissal, acquittal or the best possible outcome. We invite you call us at 619-525-9911 to learn how we can help.
- All California State and Federal Courts
- University of Miami, 2001 BA Political Science
- Emory University School of Law, 2004, Juris Doctorate
Admitted To The Bar: 12/2004
Professional Memberships and Achievements
- State Bar of California
- San Diego North County Bar Association
- North County Bar Lawyer Referral Panel
- San Diego County Office of Assigned Counsel Panel Member
- National Association of Criminal Defense Lawyers (NACDL)
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