Assault And Battery

Assault and Battery

A “battery” is simply using “force” on another person where that force results in a harmful or offensive touching. (For example, pushing or striking someone) A battery is defined in Penal Code section 242. An “assault” is an attempted battery. (For example, trying to strike someone but missing.) This is defined in Penal Code section 240.
Simple assault and battery are misdemeanors punishable by up to one year in the county jail. If the assault or battery is committed with force likely to cause great bodily injury or with a weapon, (Penal Code Section 245), it becomes chargeable as a felony and is punishable by up to four years in the state prison. If the assault with a deadly weapon is committed with a firearm, it is punishable by up to nine years in prison, with a five-year mandatory minimum. Conviction of an “aggravated” assault or battery can be a “strike” on your record.
If the assault or battery is committed with force likely to cause great bodily injury or with a weapon, it becomes chargeable as a felony and is punishable by up to four years in prison. If it is committed with a firearm, it is punishable by up to nine years in prison, with a five-year mandatory minimum. Conviction of an “aggravated” assault or battery can be a “strike” on your record. If facing these charges you must talk with an Orange County assault attorney.


Assault and Battery are general intent crimes. This means that the District Attorney doesn’t need to show that you intended to injure or hurt the victim. They need only show that you intended to do an act which by its nature would probably result in the application of force to another person. For example, if you throw a stone into a crowd, you may have no actual intent to hit anyone. But the only intent that the prosecutor must show is that you intended to throw the stone. Because the crimes of assault and battery are general intent crimes, the defense of voluntary intoxication is unavailable. However, the defense of involuntary intoxication can still be raised by your Orange County criminal defense lawyer.

Types of Assault

There are many assault laws to address different types of assault, like assault with a deadly weapon, assault with a firearm, assault with force likely to cause serious bodily injury, assault with chemicals, or assault with a stun gun or taser. Assaults are also treated differently depending on where they are committed, such as a school, public park or on public transportation.
Moreover, an assault against certain classes of victims are punished more harshly, such as assault on a peace officer (Penal Code section 243(b)), emergency service personnel, a doctor or nurse giving aid, or an animal control or parking control officer. Likewise, there are numerous categories of sexual assaults depending on the age of the victim and the intent of the defendant. Speak to an Orange County criminal defense attorney to better understand an assault charge.

Assault And Battery Court Process

First Court Appearance (Arraignment)

When you were released from custody you were given either a citation or a promise-to-appear. Both of these will have the date, time and location of your mandatory court appearance. If you have only been charged with a misdemeanor  your criminal defense lawyer in Orange County can appear on your behalf.
At your arraignment, the judge will inform you and your criminal defense lawyer exactly what you are being charged with. The judge will also review your bail situation and decide if your bail should be increased. Your assault lawyer will get the police report and serve a written request on the DA for other important evidence such as video tapes, audio tapes, medical records, and witness statements. Usually, we enter a plea of “not guilty” at the arraignment and set another court date, either a preliminary hearing or a pretrial conference.

Preliminary Hearing

If you are facing felony assault and battery charges you have the right to a “preliminary hearing” at which the DA must produce enough evidence against you to justify prosecuting you. This hearing offers your criminal defense lawyer a great opportunity to cross-examine the police witnesses in your case. It is also an opportunity to present evidence of any possible defenses. Also, if you have been charged with a felony but the case really isn’t too serious, your criminal defense attorney can petition the judge to reduce the charge to a misdemeanor under Penal Code section 17(b).

Pretrial Conferences

During a series of pretrial conferences your criminal defense attorney in Orange County will review all the evidence the DA intends to use against you, interview witnesses, visit the scene of the alleged assault, and conduct legal research on any of the various legal issues and defenses that may arise in your case. Hiring an Orange County criminal defense lawyer with the intelligence and skill to spot these legal issues can make all the difference in the result of our case.


After moving to exclude inadmissible evidence, your attorney must then determine if the DA can convict you with the evidence they have. He must also determine if you have a defense. Were you defending yourself or someone else? Were you protecting your property? Or did the police arrest the wrong person just because the real aggressor was the first one to call 911 or had a more convincing story when the police arrived?
Other defenses include consent, (this occurs where the “victim” actually invited, welcomed or allowed the touching), provocation, and lack of intent. “Mutual combat” is not a defense. If both parties agree to fight in public, both can be charged with criminal battery. However, if your Orange County criminal attorney can convince the DA that it was mutual combat, the DA might dismiss the case since there is no real “victim”.

Negotiating A Settlement In An Assault Case

If the evidence against you is strong and you don’t have a defense, it falls on your assault and battery attorney to negotiate the best possible deal for you. A skilled assault and battery lawyer must be prepared to highlight the strengths of your case so that the DA would rather avoid a trial than wasting valuable time and scarce resources prosecuting a losing case. Your Orange County defense attorney must also present you to the judge and DA in the most favorable light. He must make sure the judge and DA are aware of any mitigating circumstances in your case. Often, the only window for the judge and District Attorney into your personal life is through your defense attorney. If your Orange County assault lawyer is effective at doing these things, you’re likely to get the best possible offer from the DA or the Judge.

Alternatives To Jail

Finally, if jail time is unavoidable, a capable assault attorney will present sentencing options to keep you out of jail. These alternatives may include home confinement where you serve your jail sentence at home with an electronic bracelet, leaving only for work or for necessities of life. Other options include community service or doing labor for Caltrans. If actual jail confinement is unavoidable an assault lawyer may be able to convince a judge to allow you to serve your time in a “private” jail, (“pay and stay”), where you are released for 12 hours a day to go to work or school. Another option is to serve your jail time on the weekends–checking in Friday night and being released Sunday night. A competent Orange County criminal defense attorney will zealously push to get you an alternative sentencing option.


If you do have a defense or if the District Attorney’s evidence is not very strong, and if you are do not wish to accept the prosecutor’s offer, your case will go to trial. Few assault cases make it to trial; maybe one in twelve or so. At trial, the District Attorney presents whatever admissible evidence they have against you to twelve ordinary jurors. In order to convict you, the District Atttorney must prove every element of every charge against you by proof beyond a reasonable doubt, the highest evidentiary burden in law. Your Orange County criminal defense attorney must persuasively point out the weaknesses of the DA’s case and skillfully present your defense, if you have one.
In order to convict you, all twelve jurors must agree that the District Attorney has proved its case beyond a reasonable doubt. If even one juror finds that the DA hasn’t met this heavy burden, then you can’t be convicted. (Hung jury) If all twelve jurors agree that the District Attorney didn’t meet their burden of proof, then they must return a verdict of not guilty.

What you must do now

Don’t talk to anyone about what happened without talking to an experienced criminal defense attorney in Orange County first. Also, if you have been served with a protective order (restraining order) ordering you to stay away from the “victim”, make sure you comply with its terms. Failure to do so can result in the judge revoking your bail or own recognizance release and ordering you to be jailed.

Free Telephonic Consultation With An Orange County Criminal Defense Lawyer

At The Law Office of EJ Stopyro we offer a free and confidential consultation with an experienced orange county criminal defense lawyer. EJ is happy to help you explore your options and better understand your position. Call us today at (949) 559-5500.