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Battery (Penal Code 242 PC)


Battery (Penal Code 242 PC)
You can be charged with Battery (under California Penal Code Section 242) if you willfully and unlawfully use force or violence on another person. Contrary to popular belief, you do not actually have to cause injury or leave any long-lasting (or even temporary) harm upon the alleged victim; the mere touching is sufficient to warrant a battery conviction.

What Qualifies as “Battery” under California Penal Code Section 242?

A battery is any willful and unlawful use of force or violence upon the person of another. (Cal. Pen. Code § 242). If done in an offensive or hostile manner, even the most seemingly-insignificant touch can trigger a PC 242 allegation.

If, for example, Rhonda lightly pokes at Jeanine with a toothpick, Jeanine could adequately claim that Rhonda inflicted a batter on her. If Rhet blew a spitball (through a straw) at Bernathea as they sit across each other at a table at a lunch cafeteria, the prosecutor can charge Rhet with battery. The common denominator among battery cases is that the touching is intentional, undesired, and offensive.

To go even further, if Jeanine sustains a hemorrhage (for example, if she was a hemophiliac) because the impact of Rhonda’s toothpick made her bleed, or, if Bernathea suffers a severe peanut allergy (because Rhet’s mouth was full of peanut butter at the time he launched the spitball at her from his straw), both Rhonda and Rhet can be charged with battery causing serious bodily injury (under Penal Code section 243(d)).

If the alleged victim does not sustain severe bodily harm, the “filing deputy” at the district attorney’s (or city attorney’s) office will file the case as a “simple battery,” that is, misdemeanor battery under Penal Code 242.

You should also know that, if the alleged victim happens to be a police officer or other public service official, you may be charged under California Penal Code Section 243, i.e., battery on a peace officer. Moreover, the prosecutor has the discretion of filing “battery on a peace officer” as a felony (or a misdemeanor), irrespective of the physical injury (or lack thereof) resulting from the battery. Due the heightened protection received by this class of victims, you risk the possibility of a lengthier county jail or California state prison commitment, higher fines, lengthier probation, etc., that if you were convicted of “simple battery” under 242 PC.

What is the difference between assault and battery?
Contrary to popular misconception, battery and assault are not interchangeable terms. In fact, they are two separate crimes: assault is defined in Penal Code 240 and battery under Penal Code 242. A simple way of looking at the distinction is as follows: a battery is an assault come to fruition. Another way of saying it is: a battery is a “completed assault.” Where the assault is an unlawful attempt to commit a battery, a battery is the culmination of that attempt.

For you to be convicted under Penal Code 242 PC battery, some painful, violent or offensive touching must have actually occurred. However, under Penal Code 240 PC assault, all that is needed is an unlawful attempt to accomplish said touching.

For example, say Xifan and Genovelo are at a restaurant and they both become embroiled in an acrimonious discussion over a girl (on whom they both have a crush). Xifan thinks he has had enough and swings at Genovelo. He lunges his fist at Genovelo’s face but fails to land the punch. A nearby security guard restrains Xifan and throws him out of the eatery. Xifan’s criminal defense attorney can argue that Xifan’s actions did not constitute battery because, although Xifan attempted to strike Genovelo, no actual touching occurred.

Let’s look at the same fact scenario, except that, this time, Xifan’s punch actually lands on Genovelo and the latter is struck. At this point, the prosecution can file a 242 PC battery because Xifan willfully and unlawfully touched Genovelo.

Assault is a necessarily-included or lesser-included offense of battery. Under the Double Jeopardy Clause, you cannot twice be punished for the same crime (by the same sovereign). Therefore, you cannot be simultaneously convicted of both assault and battery.

What does the prosecutor need to show in order to prove that I am guilty of battery under 242 PC?
In order to prove that you are guilty of battery under California Penal Code Section 242, the prosecution must show the following elements:

1) that you acted willfully;

2) applied force or violence;

3) on another person.

Willful
The term willful denotes that you acted with willingness or purpose to commit a harmful or offensive touching on another person. It is not necessary for the prosecutor to show that you meant to break the law or that you actually intended to cause injury to the alleged victim.
For example: Carlyle and Agamemnon, both baseball players, are bickering at each other over the latter’s inability to carry the team forward. Carlyle, angrily swinging and flailing his bat in the presence of other teammates, recklessly and accidentally hits Josephus. Despite the fact that Carlyle’s hitting of Josephus was accidental, Carlyle was swinging his bat recklessly. Such purposefulness meets the “willful” element of battery under 242 PC even though he had no intention of committing a crime or of injuring Josephus.

Force or violence
“[T]he words ‘force’ and ‘violence’ are synonymous and mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act.” California Criminal Jury Instruction 16.141 (Battery–“Force and Violence” Defined.
“The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner, is sufficient [to cause a California battery]. It is not necessary that the touching be done in actual anger or with actual malice; it is [enough] if it was unwarranted and unjustifiable.” Id.

Upon another
It is only sufficient that the clothing or some other exterior part of the person be touched for the defendant to be convicted of battery. For example, if Gus and Chuck, fans of opposite football teams, are arguing heatedly about which team will win a championship game, and Chuck lightly slaps Gus’ hat from his head, Chuck can be charged and convicted of PC 242 battery. Even though the hat is not a part of Gus’ anatomy, it is sufficiently attached to Gus to be considered part of his “person.” Chuck would be every bit as liable for battery under PC 242 as if he had, instead, punched Gus on the jaw or if he had only gently or moderately shoved him. 

Now, these may be more obvious examples of battery. There exist what many people may consider “gray areas” but which, nonetheless, fit the definition of California’s battery statute. For example, if Chuck yanks and tosses the cap that Gus is holding, or if Chuck sees Gus having lunch at an alfresco (outdoor) restaurant and rams his motorcycle into Gus’ table. In both of these examples, the cap and the table are sufficiently connected to Gus to incur criminal liability for Chuck.

What if the victim sustained serious bodily injury as the result of the battery ? Is it treated the same as “normal” battery?
No. The consequences are worse. “Aggravated Battery,” (i.e., “battery causing serious bodily injury”) is penalized under California Penal Code Section 243(d). Using the above example, if Chuck’s motorcycle causes the table to turn over and crush Gus, resulting in cracked ribs and heavy bruising, Chuck can be charged with a felony. This is because PC 243(d) is a “wobbler,” that is, the prosecutor has the discretion of filing it is a felony or misdemeanor. (The prosecutor can make this determination based on the particular facts of the case before it as well as the defendant’s criminal background, if any.) Additionally, Chuck may sustain a “strike” on his criminal record under the “Three Strikes Law” because aggravated battery constitutes a violent felony. And violent felonies are strikes under the Three Strikes Law.

Serious bodily injury is that which produces substantial physical harm. Broken bones, cracked ribs, heavy bruising, cuts requiring stitching are examples of serious bodily injury.

What is “domestic” battery?
You can be charged with domestic battery if you are charged with having applied willful and unlawful force or violence upon your spouse or cohabitant. Battery under California Penal Code 243 (e) (1) is hardly any different from battery under California Penal Code 242 because the only added element is that the victim be your intimate partner.

An intimate partner can be your “a spouse, a person with whom [you are] cohabiting, a person who is the parent of the [your] child, former spouse, fiancé, or fiancée, or a person with whom [you] currently [have,] or [have] previously had, a dating or engagement relationship.” In this case, the “battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.” PC 243(e)(1)

What is sexual battery?
Under California Penal Code Section 243.4, you can be prosecuted if you committed (or are alleged to have committed) the following: 
1) touched the intimate part of another;
2) without the victim’s consent;
3) for the purpose of sexual arousal, gratification or abuse.

Unlike domestic or simple battery, the elements of sexual battery are very particular to 243.4 PC. Sexual battery focuses more on the unwanted and offensive lurid nature of the touching, as opposed to the harmful and physically-injurious (but not necessarily sexually-motivated) nature of battery charges under 242 PC and 243(e)(1) PC.

What are the consequences for being convicted for simple battery under 242 PC?
If you are convicted of misdemeanor battery pursuant to Penal Code 242 PC, you may or will likely suffer the following penalties:

– six months in the county jail;
– summary (or informal) probation for up to three years;
– a fine of possible up to $2,000
– community labor
– successful completion of anger management classes or a “batterers’ program”

However, if you are convicted of aggravated battery (under California Penal Code 243(d)), you may face up to one year in the county jail (if a misdemeanor conviction). A felony conviction will incur worse penalties, still:

– 2, 3 or possibly even 4 years in the California State Prison;
– five years of formal probation (that is, you answer to a probation officer)
– possible “strike” on your record under the Three Strikes Law

If I am charged with battery, what defenses can McGregor & Ernenwein argue on my behalf?
Like other accusations of violent crime, a charge of battery is often fueled by vindictiveness and reprisal by the accusing party. The alleged victim may harbor a resentment, grudge or vendetta against you that motivated him or her to contact the police and fabricate a story about how you battered him or her. Based on the specific facts of your case, our Torrance battery criminal defense attorneys and Los Angeles battery criminal defense attorneys will argue the following

“Fight Club”
Many amateur fighters organize themselves into fight clubs to practice their martial arts skills or simply to “unwind” and release tension and stress. The eponymously-titled popular motion picture vividly depicted this underground phenomenon and such organizations, independent of the film, do actually exist. If you are accused of having battered another fighter, and you are being charged with simple or aggravated battery as a result, our battery defense lawyers will argue that the alleged victim consented to the battery.

Self Defense or Defense of a Third Party
If you or another person were facing the threat of physical injury or attack, then you are legally protected from liability if you can successfully advance an affirmative defense, such as self-defense or defense of others. For example, using an example from above, let’s say Chuck is revving his motorcycle in Gus’ direction and Chuck proceeds forward as if to run him over or strike the table at which Gus is sitting. But instead of being paralyzed with fear, Gus picks up a nearby pipe and “clotheslines” Chuck as he makes his advance. Chuck falls off his motorcycle, which spins out of control and fizzles out which Chuck writhes in pain on the pavement. Chuck is then hauled off to a hospital and Gus is arrested for aggravated battery. Gus hires McGregor & Ernenwein battery defense lawyers and they are able to prove that Gus acted in self-defense because Chuck was about to hit him with his motorcycle. Gus is subsequently acquitted on the basis of a valid self-defense theory.

Our Torrance defense attorneys have over half-a-century employing their skill, knowledge and experience defeating charges of battery. Our senior partner, Robert Ernenwein is a board certified criminal defense expert certified by the State Bar of California. Together our attorneys fight vigorously for our clients. You can be among the tens of thousands of clients for whom we have obtained acquittals and dismissals. Call us: 310-782-0552.


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