Are assault and battery the same in California? 12 Answers as of October 21, 2010

I got in a fight at a bar and the police arrested me for assault and battery. What is the difference?

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Law Office of Geoffrey M. Yaryan
Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
An assault is an attempted battery.
Answer Applies to: California
Replied: 10/21/2010
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
for assault you not have to touch anyone for battery you do.
Answer Applies to: California
Replied: 10/19/2010
Law Office of Marc K. Herbert
Law Office of Marc K. Herbert | Marc K. Herbert
Although often linked together in the same case, these are two separate charges. Assault is the fear of bring touched by someone and battery is the actual touching.

Assault can be a felony and even a strike under the Three Strikes Law, depending on the specific facts of the case. If filed as a felony, the maximum sentence is 4 years in state prison. It can also be filed as misdemeanor assault, with a maximum sentence of one year in jail.

Most battery cases are filed as misdemeanors with maximum sentence of 6 months in jail; however, battery with serious bodily injury is a felony with a 4 year maximum.

If you would like to discuss the specific facts of your case, please call my office for a FREE phone conference.
Answer Applies to: California
Replied: 10/19/2010
Nelson & Lawless
Nelson & Lawless | Terry Nelson
Two different crimes, each with jail time potential. Assault is the threat. Battery is the hitting. If serious about hiring counsel to defend you in this, feel free to contact me.
Answer Applies to: California
Replied: 10/19/2010
Law Office of Marc Grossman
Law Office of Marc Grossman | Paul Thomsen
Assault and Battery are two different crimes. Assault is Penal Code 240 Battery is Penal Code 241 An assault is defined: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Penalty: up to $1,000 and 6 months in county jail. A battery is defined: "A battery is any willful and unlawful use of force or violence upon the person of another." Penalty: up to $2,000 and 6 months in county jail.

Assault is a lesser included offense of battery. In essence, if you struck your opponent you committed a battery. If you tried, and missed, you committed an assault. If you are convicted of battery there is no penalty for the assault. There are additional penalties, or enhancements, that could be applied to the above penalties if there are aggravating circumstances.
Answer Applies to: California
Replied: 10/19/2010
    The Law Offices of Christopher J. McCann
    The Law Offices of Christopher J. McCann | Christopher J. McCann
    Assault is defined as either an attempted battery or putting another in fear or apprehension of an imminent battery. A battery is defined as a harmful or offensive touching. It is not uncommon to be charged with both if you keep in kind that a battery is basically a "completed" assault, and while both are crimes, at the time charges are filed, the DA may not know if they can prove the battery or just the assault. They charge both just in case.
    Answer Applies to: California
    Replied: 10/18/2010
    The English Law Firm
    The English Law Firm | Robert English
    Typically the assault is the act of trying to batter someone or creating an imminent fear of the battery. The battery is the actual unlawful contact. Basically, you could still be charged with an assault if you took a swing but missed. I am available to assist with your matter if it is in Southern California.
    Answer Applies to: California
    Replied: 10/18/2010
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Generally speaking, Assault = a legitimate threat of causing harm to someone. Battery requires some kind of physical contact.
    Answer Applies to: California
    Replied: 10/18/2010
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Assault is making someone feel they are about to be battered, and battery is the actual hitting itself. Both are usually charged together if there was physical contact.
    Answer Applies to: California
    Replied: 10/18/2010
    The Law Offices of Robert L. Driessen
    The Law Offices of Robert L. Driessen | Robert L. Driessen
    No they are different crimes. Assault is a lesser included of the battery. They are PC 240 and 242. Essentially if you made contact with the other person it would be a battery. You should hire an attorney to assist you. Charges could get worse depending upon the possible injuries.
    Answer Applies to: California
    Replied: 10/18/2010
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