July 29, 2013 By Wallin & Klarich

Many individuals often use the terms “assault” and “battery” interchangeably. However, these terms do not refer to the same crime, but rather two separate offenses under California state law. What is the difference between assault and battery?

California Penal Code section 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

Attorney for AssaultTo convict you of assault under PC 240, the prosecutor must prove the following elements:

  • You acted willfully;
  • Your act was a direct and probable result in the application of force to another;
  • You were aware that the act would likely result in application of force to another; AND
  • You had the present ability to apply the unlawful force.

California Penal Code section 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.”

To convict you of battery under PC 242, the prosecutor would need to show the following:

  • You willfully and unlawfully touched another person in a harmful or offensive manner;

Contrasting The Differences Between Assault And Battery

Assault is commonly referred to as an “attempted battery.” An assault may have taken place without the occurrence of a battery. This is because physical contact is not an element of an assault charge. On the other hand, a battery necessarily requires an assault. You cannot willfully and unlawfully touch someone (battery) if you do not first make an unlawful attempt (assault) to do so.

To better illustrate this point, consider the following examples:

accused of assault1. You were watching the NBA Finals at a local sports bar. You began to argue with a fan of the opposing team. As the argument escalated, you swung your right fist at the other person’s jaw, but failed to make contact. In this situation, you may be convicted of assault under PC 240 if the prosecutor can demonstrate the following facts:

• Your punch was willful;

• Your punch was a direct and probable result in the application of force to other person;

• You knew that your punch was a direct and probable result of application of force to other person; AND

• You had the present ability to punch that person.

2. You were waiting in line at the DMV when another person “cut” in front of you. When he failed to acknowledge the “cut”, you knocked him to the ground with an aggressive two-handed shove. In this situation, you may be convicted of battery under PC 242 if the prosecutor can prove the following facts:

• The two handed-shove was intentional and unlawful; AND

• A two-handed shove is considered a harmful or offensive touching.

What Can Wallin & Klarich Do For You?

The attorneys at Wallin & Klarich have over 30 years of experience successfully defending clients accused of violating PC 240 and/or PC 242. Our committed Southern California attorneys will examine all of the available evidence and zealously represent your best interest throughout the entire process. We have the skill and experience necessary to help you win your case.

Our offices are located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina, Victorville, Torrance and Sherman Oaks.

Call us today at (888) 280-6839 for a free phone consultation. We will get through this together.

Contact Us
  •   17592 Irvine Blvd,
      Tustin, CA 92780
  •   (714) 730-5300
  •   (888) 280-6839
SCHEDULE YOUR free consultation

If you or a loved one have been accused of a crime, this is the time to contact us.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 Wallin & Klarich - All rights reserved

California Criminal Defense Lawyer Disclaimer: The legal information presented at this site should not be construed to be formal legal advice, nor should it be considered the formation of a lawyer or attorney-client relationship. Any case results presented on the site are based upon the facts of a particular case and do not represent a promise or guarantee. The contents of this website may contain legal advertising. If you would like to find out more information about your particular legal matter, contact our office for a free telephonic consultation. This web site is not intended to solicit clients for matters outside of the state of California.