California Penal Code sections 240 P.C., 242 P.C., 243(d) P.C., 245 P.C. & 245(a)(1) P.C.)
The crimes of assault and battery can be charged as separate offenses (i.e., “assault” or “battery”), but are typically charged together (i.e., “assault and battery”) if the defendant allegedly injured the victim (as opposed to merely placing him or her in fear of being injured). Nevertheless, the two charges are frequently referred to in interchangeable terms in charging documents (criminal complaints) filed by either the District Attorney’s Office (felonies and occasionally misdemeanors) or the City Attorney’s Office (misdemeanors only).
The range of charges in assault cases is wide, varying from simple assault misdemeanors up to felonious assault with force likely to result in great bodily injury and, the most serious: assault with a deadly weapon charged as a “strike offense” (California Penal Code section 667 P.C.). In fact, the latter two charges are usually charged as strike offenses, which results in sentencing enhancements upon conviction.
Simple Assault/Simple Battery (California Penal Code section 242 P.C.)
An assault typically occurs when the defendant attempts but fails to make offensive or harmful contact with the victim that, if successful, likely would have wounded or emotionally/ psychologically harmed the victim. This means that you don’t even have to make physical contact with the victim to be charged with assault. Because there is no injury, assault (a.k.a. “simple assault”) will be charged as a misdemeanor, which means you could face as much as twelve months in the county jail, among other punishments.
Battery, on the other hand, is charged when the defendant does actually make harmful or offensive physical contact with the victim, but, again, does not actually injure/harm him or her. “Simple battery” (as it’s commonly known) is also charged as a misdemeanor.
Examples of Simple Assault (Misdemeanors)
– In late March 29, 2015, rapper The Game (born J. Terrell Taylor) was playing basketball as part of a charity event at Hollywood High when he allegedly got into an altercation with an opposing player. He allegedly shoved and struck the man – an off-duty LAPD patrol officer – in the face with his fist in retaliation for being fouled. In addition, Taylor allegedly threatened to kill him before he was ejected from the game. In early June 2015, he surrendered himself to LAPD, at which time he was arrested and charged with making a terrorist threat (a felony) and a single county of assault & battery (a misdemeanor). Convictions on both charges could have resulted in a maximum of three years in a state penitentiary.
– In mid-September 2016, ‘80s teen movie star Anthony Michael Hall (The Breakfast Club, Sixteen Candles) allegedly got into a heated argument with his Playa del Rey neighbor, Richard Samson, which resulted in Hall pushing Samson, who suffered a shattered wrist when he fell. As a result, Hall was arrested and charged with battery likely to produce great bodily injury, a felony. On September 20, 2017, he pled no contest to a reduced charge of misdemeanor battery likely to produce great bodily injury, and received thirty-six months of informal probation and forty hours’ volunteer work.
– In mid-October 2014, LAPD patrol officer Richard Garcia allegedly approached Angeleno Clinton Alford as part of a robbery investigation in South LA, causing Alford (who had nothing to do with the robbery or any other crime) to flee on foot. After Alford finally gave up running and lay on the sidewalk, Garcia allegedly punched and kicked him numerous times – all while being videotaped. Garcia was eventually charged with felony assault under color of authority. He ultimately accepted a no-contest plea to misdemeanor assault by a police officer and received twenty-four months’ formal probation. Alford received a $500,000 settlement from the City of Los Angeles, and Garcia was professionally disciplined.
Examples of Felony Assault
– In late April 2015, LA County probation officer Carlos Portillo allegedly attacked a teenage inmate at the juvenile detention facility in the Sylmar neighborhood of Los Angeles while Portillo’s colleague, P.O. Timothy Boundy, restrained the victim, and as a third P.O., Sergio Cano, looked on but failed to intervene. The entire incident was allegedly captured by security cameras. Fortunately, the victim was only slightly wounded. Then, on October 8, 2015, Boundy allegedly attacked another teenage inmate. Finally, in early February 2016, Portillo and Boundy allegedly attacked a third teenage inmate. As a result, in late March 2017, the DA’s Office charged Portillo, Boundy, and Cano with two, three, and single counts, respectively, of felonious assault under color of authority. If convicted, they would receive a maximum of four-and-one third years, three-and-three-quarters years, and three years, respectively, in prison.
– In mid-May 2019, Long Beach PD alleged that local resident Bryan Blancas and several fellow gang members attacked a sixteen-year-old African-American boy, kicking him repeatedly after knocking him to the ground. One week later, LBPD arrested Blancas, and five months later, he pled no contest to assault with force likely to result in great bodily injury – a felony with hate-crime and street-gang enhancements. He received an eight-year sentence in a California Department of Corrections institution.
– In early April 2018, Tarzana resident and former NBA player Ronald G. Davis allegedly engaged in a street brawl outside of a West Hollywood nightclub, which resulted in Davis slamming the victim against a brick building and injuring him (though not seriously). LASD deputies arrested Davis, who was charged in early June by the DA’s Office with assault using forcing likely to cause serious bodily injury. This felony also came with an enhancement for actually causing serious injury; thus, Davis faced a maximum sentence of more than half-a-dozen years in a California penitentiary.
Aggravated Assault (California Penal Code section 240 P.C.)
If you unsuccessfully attempted to attack someone with the intent to commit great bodily injury, then you would likely be charged with aggravated assault.
Aggravated Battery (California Penal Code section 243(d) P.C.)
Aggravated battery, by contrast, occurs when both physical contact and actual injury occurs. Therefore, it will be charged as a felony, which could result in one or more years in state prison.
However, aggravated battery is also considered to be a “wobbler” felony, meaning that the Deputy District Attorney prosecuting the case has the authority to decide whether to charge you with a felony or a misdemeanor.
If there are certain aggravating factors present – such as the defendant’s extensive criminal history, or severe injury to the victim – then the Deputy DA will definitely charge you with a felony. But if there are substantial mitigating factors – for instances, you are a first-time offender or the absence of serious injury – then you’ll be prosecuted for a misdemeanor.
But keep in mind that aggravated battery, if prosecuted as a felony, can be charged as a strike offense (again, under California Penal Code section 667 P.C.), which means you would have to do at least eighty-five percent of your sentence, even with good behavior – or even see your sentence double as a result of the strike enhancement. It also means that if you are convicted of aggravated battery while having two prior strikes on your record, you could be sentenced to a minimum of twenty-five years in state prison, up to a maximum of life – both with the possibility of parole.
Aggravated Mayhem (California Penal Code section 245 P.C.)
If you attacked someone and not only caused them serious injury but some type of permanent disfigurement (such as the loss of a body part) in LA County, then you will likely be charged with aggravated mayhem, which is almost always charged as a felony-strike. A weapon or dangerous object is typically involved when this crime is charged.
Examples of Aggravated Mayhem (Felonies/Strikes)
– In mid-May 2017, Long Beach residents Jamika M. Abair and Sarah G. Huerta allegedly got into a heated argument with a man in a Beverly Hills outdoor mall, which led to Abair smashing her car into the man and dismembering his leg. Beverly Hills PD arrested both women, who were charged by the DA’s Office several days later with the following felonies: aggravated mayhem, assault with a deadly weapon (the car), attempted murder for Abair, and accessory-after-the fact for Huerta. Abair also faced a sentencing enhancement for actually causing great bodily injury, with a maximum penalty of life if convicted. Huerta faced a max of thirty-six months’ incarceration.
– In late October 2016, local resident Darryl A. McIntosh allegedly shoved a uniformed Santa Monica PD officer in a 7-11, then attempted to gouge out the officer’s eyes with his fingers. A second officer intervened, and McIntosh was arrested and charged with two felonies: attempted mayhem and resisting a police officer. (Five months earlier, he had been convicted of a previous felony for resisting arrest.) In late December, a judge ruled at a preliminary hearing that there was sufficient evidence to try McIntosh on the two felonies.
– During the first weekend of August 2014, San Diego resident Roberto A. Garnica allegedly shoved a woman at an event at Pasadena’s Rose Bowl, then go into a fistfight with her husband, during which Garnica bit off part of one of his fingers. Pasadena PD then arrested Garnica, who was charged with two felonies and a misdemeanor for mayhem, battery resulting in serious bodily injury, and battery (on the wife). Six months later, he pled no contest to the mayhem charge in exchange for dismissal of the other two charges. The judge sentenced him to almost six weeks in jail, thirty-six months of formal probation, one month of volunteer work, one full year of weekly counseling sessions, and an undisclosed amount of monetary restitution.
Assault with a Deadly Weapon (“ADW”) (California Penal Code section 245(a)(1) P.C.)
This crime covers any attack against another individual with a weapon or any object that can cause – but does not necessarily result in – serious injury or death. Weapons cover the typical range of dangerous implements, but can also include anything from attack dogs to vehicles. Remember that scene in Pulp Fiction where Bruce Willis searches through the pawn shop – first choosing a hammer, then a baseball bat, before finally settling on a samurai sword? Each of those would be considered a deadly weapon under this criminal statute.
Another example involves the actor Christian Slater, (USA Network’s Mr. Robot) who, in late December 2018, was arrested after allegedly wrecking his vehicle into a West Hollywood utility pole following a high-speed police chase with Sheriff’s Department deputies. Slater then allegedly exited the vehicle, kicked a deputy in the face, and tried to flee on foot. One of the crimes he was charged with was ADW because he had allegedly been wearing cowboy boots at the time.
As far as objects, anything from a sharpened pencil to a bicycle lock can constitute a deadly weapon for this charge. Fists and feet are rarely considered to be deadly weapons, regardless of any martial arts training you may have, but if, say, you kick someone in the head while wearing heavy boots, you could be charged with ADW – including as a strike offense.
You don’t even have to actually make contact with the victim to be convicted of this crime – all that is required is your intent to injure the person, and your knowledge or belief that the object could cause serious harm or even death. In other words, even an attempted attack with a dangerous weapon or object can land you in prison for many years. So even if you were simply trying to scare the victim with such an object, you can be convicted of ADW. And, obviously, if you actually strike and seriously injure the victim, your likelihood of conviction for ADW skyrockets.
ADW is one of those crimes where the prosecutor has a great deal of discretion in charging you with either a misdemeanor or a felony, depending on the facts and evidence, including the nature of the victim’s injuries (if any), as well as your prior criminal convictions (if any). Again, crimes that allow for this type of prosecutorial discretion are known as “wobblers”. However, typically a misdemeanor ADW conviction results following a plea agreement – in other words, it is uncommon for the prosecutor to charge ADW as a misdemeanor.
As with aggravated battery and aggravated mayhem (above), the biggest problem for defendants charged with ADW is that under California’s Three Strikes Law (California Penal Code section 667 P.C.), this crime constitutes a strike. Even worse, if this is your third strike, you will receive a minimum of twenty-five years in prison, or possibly even a life term (but with possible parole).
Examples of ADW Misdemeanors
– In mid-April 2018, local resident Eric Clanton allegedly struck seven people with a metal bicycle lock while riding a bike during a protest rally against Trump supporters on the UC Berkeley campus, causing various injuries (though non life-threatening). Video clips of the attacks went viral online. Four months later, the Alameda County DA’s Office charged him with numerous felonies for ADW, including at least one potential sentencing enhancement for causing great bodily injury. At his preliminary hearing, he pled out (no contest) to misdemeanor ADW, and received thirty-six months of formal probation.
– In mid-January 2016, local resident Dennis J. Reed allegedly tried to strike a man riding a bicycle with his automobile. After Glendale PD arrested Rehim five months later, the DA’s Office charged him with misdemeanor ADW, as well as misdemeanor battery with force likely to cause serious injury (although no actual injury was alleged). He was also charged with a misdemeanor for filing a false police report after he allegedly reported to police that the victim had tried to attack him. If convicted, Reed would face a maximum sentence of eighteen months in DTLA’s Twin Towers (Men’s Central Jail) facility.
Examples of ADW Felonies/Strikes
– According to Long Beach police, in mid-May 2019, a reputed gang member and Long Beach resident, Bryan Blancas, committed a hate crime against a teenage African-African male by assaulting him and yelling racial epithets. LBPD arrested Blancas less than a week later, and two days after that, the LA County District Attorney’s Office charged him with felony ADW (for allegedly kicking the victim in the head and face with boots), felony assault with force likely to result in serious injury, two felonies for violating the victim’s civil rights (hate crime counts), a felony count of criminal threats for the purpose of intimidating a witness, and misdemeanor battery. He faced a potential life sentence if convicted, plus an additional 18 years for various enhancements, including a violent act committed for the benefit of a street gang.
– In mid-April 2017, Angeleno R. Smith got into a fender-bender with another driver – a woman -- in Long Beach, and then pulled over to exchange information with her. According to LBPD, the conversation became heated, then Smith struck her multiple times in the face with his fist, ripped her purse away, and jumped back into his vehicle to drive away. At that point, the woman’s husband arrived in his own car, but Smith allegedly T-boned the man’s vehicle with his own before making his escape. Unfortunately for all parties, the wife had allegedly suffered serious injuries and had to be hospitalized. Less than a week later, LBPD located Smith through DMV records and arrested him. The case dragged on for almost two years until Smith pled no contest to felony ADW (with his vehicle serving as the deadly weapon), assault with force likely to cause serious injury, and second-degree robbery. The judge sentenced him to almost twenty years in the state pen, which included sentencing enhancements for actually inflicting serious injury upon the victim, as well as causing serious injury during the commission of a robbery.
– At the end of March 2018, Eduarda DeCastro, a Brazilian living in LA with her husband, allegedly got into a screaming match with him, ending in her throwing a crystal vase at him, which struck and gashed his face. Then, at the beginning of September 2018, she allegedly got into a second fight, this time with a woman whom she also tried to injure with glassware (a bottle) at a bar in Hollywood. According to LAPD, when that woman’s female companion attempted to intervene, DeCastro punched her so hard in the face that she dropped to the floor and struck her head. The DA’s Office therefore charged DeCastro with numerous felonies, including ADW (the glassware serving as deadly weapons), mayhem, and assault with force likely to cause serious injury. Because of sentencing enhancements (for actually causing serious injury), she faced more than sixteen years in a California correctional institution.
Defense Strategies to Assault Criminal Charges
When it comes to simple assault (again, without injury), when appropriate we may argue to the DA’s Office (or the City Attorney’s Office, which is empowered to prosecute only misdemeanors) that our client acted involuntarily, and that he or she never intended to strike, much less injure, the complaining witness. Or we might argue that the alleged assault was the result of an act that would not necessarily result in harm to anyone and, therefore, it was an act that no reasonable person would believe could cause such harm.
See California Penal Code sections 240 P.C.; see also Judicial Council of California Criminal Jury Instructions CALCRIM 915.
As far as defending a simple battery case, one of the most effective defenses we employ is self-defense. In other words, our client had reasonably believed that he or she was in imminent danger of harm by the purported victim, and, therefore, had no choice but to act as he or she did.
Alternatively, we might argue that the physical contact at issue was not actually harmful or offensive. For example, the defendant was a mixed martial arts (MMA) fighter who choked out another fighter during a Brazilian jiu-jitsu practice session and, therefore, had the victim’s permission to act as he did, and that the injury suffered was a natural consequence of the mutually-agreed-upon match. Or, in a case involving a minor, we might argue that our client was acting well within his or her rights as a parent when he or she disciplined the child/purported victim.
See California Penal Code section 242 P.C.; see also Judicial Council of California Criminal Jury Instructions CALCRIM 960.
Self-defense works equally well when defending an aggravated battery charge. Challenging the severity of the victim’s injury is also a legitimate defense if the facts and evidence permit. Or we might argue, when appropriate, that our client’s act had not been voluntary or intentional; for example, if someone shoved him against a balcony, causing him to fall and land on the victim.
See California Penal Code sections 243(d) P.C.; see also Judicial Council of California Criminal Jury Instructions CALCRIM 925.
In general, many defenses are available to counter an ADW charge. For example, the defendant (through his or her attorney) can argue, if appropriate, that the object was not necessarily one that would likely produce injury, much less death. Alternatively, you could argue that you did not know (nor should have known) that your act would likely result in injury.
The defendant may also successfully argue that he or she did not willfully commit the act resulting in the ADW charge. For example, someone rear-ended your car, forcing you to slam into a pedestrian crossing in front of you.
More generally, you could argue that you never intended to harm the victim, or, as previously indicated, that otherwise the incident was the result of an accident. Similarly, the defendant might claim that he or she was not aware of facts that would lead a reasonable person to believe that the act itself, or the object itself, would likely result in harm to another person.
And finally, once again, as with most prosecuted violent acts, a common defense is that you reasonably believed that either you or another person were in imminent danger of being hurt or worse by the purported victim.
See California Penal Code sections 245(a)(1) P.C.; see also Judicial Council of California Criminal Jury Instructions CALCRIM 875.
What to Expect if You are Convicted of an Assault Charge
With simple assault or simple battery, you won’t receive more than one year in the county jail if you are convicted of either, or even both, of these misdemeanor charges.
With aggravated battery, you could face anywhere between two and four years in state prison, not including any sentencing enhancements if you are also convicted of a strike offense.
You can also expect to receive between three and five years of probation (formal or informal, depending on the circumstances), and to pay a fine of $1,000 to $2,000. This is in addition to the usual sentencing of community service, anger-management classes, payment of court costs and any victim’s restitution, temporary or permanent loss of right to own firearms, and maybe render you subject to a temporary or even permanent restraining order.
As with all misdemeanor convictions in California, if you were sentenced of a misdemeanor ADW charge, you would have to serve either no jail time or no more than twelve months in the county jail.
However, if you were convicted of felony assault with a deadly weapon, you could be sentenced to two, three, or four years in state prison, depending on the specific situation of your case.
Regardless of whether you are convicted of misdemeanor or felony ADW, so long as you don’t have to do time in prison, you will also likely have to serve a formal probation term of three years or five years – again, depending on the specifics of your case.
On top of all that, you will likely face additional penalties, including court fines and costs; victim restitution; a ten-year or even lifetime ban from owning or possessing guns; a restraining order prohibiting you from contacting or approaching the victim; community service; and anger management classes or similar types of counseling.
See, for example, California Penal Code section 245(a)(1) P.C.
How The Los Angeles Defense Attorney Law Firm Can Help You
Ninaz Saffari has helped hundreds of clients charged with simple assault, simple battery, assault & battery, aggravated battery, and ADW, and was able to resolve a great percentage of these cases by convincing the DA’s Office (or CA’s Office) to either dismiss or reduce the charge; to plead her client out to an infraction (which doesn’t go on your record, and is essentially like a traffic ticket) or to a misdemeanor with no jail time or even without probation; or by Ninaz obtaining a “not guilty” verdict or hung jury at trial.
In addition, in a number of these types of cases (“Pre-File Cases”), Ninaz has been able to convince the investigating detective to not forward the case to the DA or CA’s Office for prosecution. She has even managed on numerous occasions to convince the prosecutor to outright dismiss the charges even after her client had already been arraigned.
The reason for this is simple: most assault and battery cases are dependent upon witnesses who will often, if not most of the time, provide differing or even contradictory accounts to the police. Or if there are no witnesses, the cases will then usually come down to a “he said, she said” scenario, where the jury will have to determine who is more credible and trustworthy – the defendant or the supposed victim.
For these Pre-File Cases, we work closely with some of the top private investigators in the state, and their sole job is to help us gather evidence that will enable our client to resolve his or her case without ever having to go through the nightmare of arrest, prosecution, and often jail.
Several of Our Firm’s Past Assault & Battery Cases:
ADW charged as strike w/ 27 years – not guilty on all charges after jury trial:
People v. G.S.: Client was charged with two counts of ADW in DTLA’s Criminal Courts Building (a.k.a. Clara Shortridge Foltz Criminal Justice Center), our client was facing a maximum prison sentence of twenty-seven years with a strike enhancement. The charges stemmed from the client’s alleged illegal use of a semi-automatic weapon. The client insisted he was innocent and – as with many of our innocent clients – refused to take any deal whatsoever, regardless of how favorable. We completed a full jury trial wherein we successfully impeached the prosecution’s witnesses based on previous inconsistent statements they had provided to investigators and the DA’s Office. We also called to the witness stand numerous witnesses for our client who all came across as being completely honest and were, therefore, able to successfully contradict the prosecution’s witnesses. Finally, we called to testify an expert who was able to testify truthfully that none of our client’s prints were found on the subject weapon. End result: found not guilty of all charges.