An assault occurs where there is an intentional threat or use of force or violence against another individual. While assault is usually charged with a battery, there does not have to be any actual physical contact for an assault to take place – the mere threat of physical contact – is enough to be charged with assault.
In fact, California Penal Code section 240 states that an assault is committed when you make an “unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another.” Thus, the government must prove that you intended to commit a battery, and that you had the immediate and present ability to actually commit that battery.
An assault can become aggravated if there are certain things present during the underlying criminal act. Common aggravating circumstances include the use of a deadly weapon, the intent to commit a serious felony during the conduct (sexual assault, murder, robbery, kidnapping). The presence of these aggravating circumstances will typically elevate the assault charge to a felony and bring with it increased penalties, such as state prison time or a felony conviction.
Common defenses to assault include the victim consenting to the behavior, no intent to commit a battery, no present and immediate ability to commit battery, you acted in self-defense of yourself, another person or your personal property, and being falsely accused.
A battery occurs when there is an intentional use of force against someone resulting in harmful or offensive contact. Battery is also charged in varying degrees depending on the severity of the contact, ranging from simple battery to aggravated battery and may include enhancements if a weapon is used or great bodily harm is committed.
California makes it a crime to touch someone without their consent. The person touched does not need to suffer any actual injury, it is enough that you touched them in a harmful or offensive way is sufficient for a battery. Keep in mind that the government must prove that the act of touching was intentional, and, that the touching was harmful or offensive.
Similar to assault, battery can become aggravated if certain other circumstances are present during the touching. Examples of aggravated forms of battery include domestic battery/domestic violence, battery causing great bodily harm, battery on a peace officer, and sexual battery.
Common defenses to battery include self-defense or the defense of another person, the conduct was not willful, the conduct was not offensive, or being falsely accused.
If you are convicted of even a simple assault and/or battery, you may lose your ability to own a firearm for 10 years.
If you or someone you know has been charged with assault and/or battery, it is important to contact Los Angeles criminal defense lawyer Ross Erlich as soon as possible so that the proper investigation and fact-gathering can be done on the case.
Because assault and battery charges are serious and prosecuted aggressively, it is important that Los Angeles criminal defense lawyer Ross Erlich examine all possible avenues for resolving the matter including anger management classes, restitution or domestic violence treatment.
For aggressive and vigorous defense of your rights, contact Los Angeles criminal defense lawyer Ross Erlich today.