Assault / Battery

California “Assault & Battery” Laws – Penal Code 242 PC


A California Penal Code pc 242 battery takes place when you willfully and unlawfully use force or violence upon another.  You can be convicted of this offense even if you don’t harm or injure the other person, as long as you make some type of unwanted physical contact.

In order to recognize when you do… and more importantly when you don’t… commit a battery, William Daley, a California criminal defense lawyer will provide a comprehensive guide to understanding California battery law by addressing the following:

1. What is Penal Code pc 242 – Battery?

2. The Difference between Assault & Battery

3. How Does the Prosecutor Prove that I Committed Penal Code 242 pc Battery?

4. Battery and Related Offenses

5. Penalties, Punishment, and Sentencing for California Battery

6. How Do I Fight a Penal Code 242 Battery Allegation?

If, after reading this article, you have additional questions, we invite you to contact us.

1. What is California Penal Code pc 242 Battery?

California law defines battery… which is sometimes referred to as assault & battery… under Penal Code 242 PC. A California battery is simply this: any willful and unlawful touch that is harmful and/or offensive.

The slightest touch can trigger a battery allegation if it is done in an angry or offensive manner.

If, for example, Sam spits on John, John could properly claim that Sam battered him. Despite the fact that John wasn’t injured, Sam’s act was willful, unwanted, and offensive… which amounts to the crime of battery.

If the battered person is seriously hurt, the criminal case may be prosecuted under Penal Code 243(d) as a battery causing serious bodily injury.  Otherwise known as an aggravated battery, this offense will be further discussed in the section entitled “Battery and Related Offenses”.

If the battered person doesn’t suffer serious bodily injury, prosecutors will file the case as a misdemeanor (otherwise known as a simple battery) under PC 242.

The exception to this rule is when you allegedly commit a California Penal Code 243 battery on a peace officer. If the battered person is a police officer… or other protected civil servant… the offense may be filed as either a misdemeanor or a felony, regardless of whether a serious bodily injury is inflicted.

And because of the special consideration afforded to these protected individuals, you face a greater jail or prison sentence and potentially higher fines than you would if you were convicted of a Penal Code 242 PC simple battery.

2. The Difference between a California Assault & a California Battery

People often use the terms ‘assault’ and ‘battery’ interchangeably, or to refer to the same offense. However, assault (defined under California Penal Code 240) and battery (Penal Code 242) are actually two separate crimes.

A Penal Code 242 pc battery (defined above) requires some type of violent, painful, or offensive physical contact.

A California Penal Code 240 assault, on the other hand, may be filed when an attempt to injure another is made. No physical contact is actually necessary to be convicted of assault.

A California assault can take place even though no battery occurs. However, a battery necessarily includes an assault. This is because it is impossible to commit a battery (a willful act) without first attempting to do so.

An assault is often called an “attempted battery,” while battery is often called a “completed assault”. Let’s look at some examples to better illustrate the point.

Tom and Eric get into a heated argument at a nightclub. Tom decides to punch Eric. He swings his fist at Eric’s face, but misses. The bouncers then restrain and eject Tom. No physical contact actually occurred.

Tom’s California criminal defense lawyer would argue that Tom’s conduct didn’t rise to the level of battery, but only assault. Although Tom was arrested for battery, he only assaulted Eric, since there was no actual contact.

Take the same example. This time Tom actually connects his punch. Now prosecutors can file a PC 242 battery because there was physical contact.

Because PC 240 assault is a necessarily included offense of battery, you cannot be punished for committing both offenses at the same time.  A lesser offense is “necessarily included” if it is impossible to commit the greater offense (in this case, battery) without necessarily committing the lesser offense.

Since you cannot batter someone without first assaulting that person, assault is a necessarily lesser included offense of battery. As a result, you can be convicted of both offenses but only sentenced for one.

3. How Does the Prosecutor Prove that I Committed California Penal Code 242 pc Battery?

In order to prove that you committed a PC 242 battery, the prosecutor must prove the following three facts (otherwise known as “elements” of the crime):

1. that you willfully,

2. used force or violence,

3. upon another.

Let’s take a closer look at these terms to better understand the elements.


“Willfully” means with a purpose or willingness to commit the act. It is not necessary that you (1) intend to break the law, or (2) intend to injure another.

For example: Rick and Joan were involved in an argument. Rick drove away from the scene in a reckless manner and accidentally hit Joan when he wasn’t looking.

Although it may be true that hitting Joan with the car was an accident, he willfully drove the car in a reckless manner. That wilfulness is the type of conduct defined above…Rick acted “willfully” even though he didn’t intend to break the law or injure Joan.

Force or violence

The words “force or violence” mean the same thing. With respect to California battery law under Penal Code 242 PC, they refer to any illegal use of physical force against another person.

The force or violence doesn’t need to result in pain or harm. The slightest touch is sufficient for a battery if it is done in a (1) rude, (2) angry, or (3) disrespectful manner. The bottom line is that any unwarranted and unjustifiable touch suffices to trigger a California simple battery. Referring to the example used above, spitting on another perfectly illustrates this point.

Upon another

“Upon” means to touch. To “touch” another person (within the meaning of PC 242 battery law) means to touch

- the person,

- his or her clothing, or

- something attached to or closely connected to that person.


Touching the accuser – Jack punches Mike in the face.

Touching the accuser’s clothing – Jack pushes Mike’s shoulder (which is covered by his shirt).

Touching something attached to or closely connected to the accuser – Jack slaps a coffee cup out of Mike’s hand.

In the last example, the cup is in Mike’s hand and therefore qualifies as something “attached” to him. There are, however, less obvious instances of this third type of touching.

Tony kicks Mary’s dog while she is walking it on a leash.

Tony purposely rams his car into Mary’s car while she’s in it.

Although the force in both instances was applied to something other than Mary, the dog and car were “attached or closely connected” to her. As a result, the District Attorney could prosecute Tony for battery under Penal Code 242 PC.

A common misunderstanding is that assault and battery are the same thing. But that is not true. A battery must result in an offensive touching (whether or not it left a bruise), whereas assault does not require any actual bodily contact.   The easiest way to distinguish the crimes is that assault doesn’t necessarily involve any actual physical contact, while battery does. You can think of it this way — an assault is an attempted battery, and a battery is a completed assault.

4. California Battery and its Related Offenses

There are several offenses that relate to battery… either because they are lesser included, as is the case with PC 240 assault… or because they are variations of PC 242 battery. The following are a few of the most common examples.

California Penal Code 243(d) battery causing serious bodily injury

Penal Code 243(d), also known as aggravated battery, is a wobbler.   “Wobblers” may be filed as misdemeanors or felonies, depending on (1) the facts of the specific case, and (2) your criminal history.

A “serious bodily injury” is one that results in a significant injury. Examples include (but are not limited to a concussion, loss of consciousness, broken bones, and disfigurement).

Taking an example from above, if Tom not only connects his punch, but breaks Eric’s jaw as a result, prosecutors could file Penal Code 243(d) battery causing serious bodily injury.

It should be noted that if the offense is charged as a felony because the victim suffers a great bodily injury, it will be labeled a violent felony. A violent felony subjects you to a “strike” under California’s Three Strikes Law.

California Penal Code 245 (a) (1) assault with a deadly weapon (ADW)

A California Penal Code 245 (a) (1) assault with a deadly weapon (ADW) takes place when you attempt to assault another with any type of deadly weapon or means of force that is likely to cause great bodily injury to that individual.  So…

Suppose Tom attacks Eric with a knife, a beer bottle or some other dangerous weapon. In this scenario, prosecutors would likely file a battery and an ADW.

Like aggravated battery, this is a violent felony and a potential strike under California’s Three Strikes Law.

California Penal Code 243 (e) (1) domestic battery

There is very little difference between the elements in a simple battery under Penal Code 242 PC and a California Penal Code 243 (e) (1) domestic battery. The only added requirement in the latter is that the victim must be your intimate partner.

Intimate partners, under California domestic battery law, include:

- your fiancé or fiancée

- your current or former spouse,

- someone with whom you live,

- the parent of your child, and

- anyone you are or were dating.

California Penal Code 243.4 sexual battery

Unlike simple battery or domestic battery, California Penal Code 243.4 sexual battery has elements that are very specific to that offense. Sexual battery is the non-consensual touching of the intimate part of another for (1) sexual arousal, (2) sexual gratification, or (3) sexual abuse.

It is therefore related to simple battery because both offenses involve an unsolicited, non-consensual touch.

5. Penalties, Punishment and Sentencing for California Penal Code 242 Battery

If you are convicted of simple battery pursuant to Penal Code 242 PC, you face all of the following:

- informal (otherwise known as summary) probation for up to three years

- up to six months in a county jail

- a maximum $2,000 fine

- possible community service and/or successful completion of a batterer’s program

If you are convicted of aggravated battery pursuant to Penal Code 243 (d) PC, you may be charged with a misdemeanor or a felony. If the injury isn’t a “serious bodily injury”, you will likely face a misdemeanor conviction, subjecting you to a maximum one-year county jail sentence.

If the person whom you battered suffers a serious bodily injury, you face a felony, punishable by:

- formal probation

- 2, 3, or 4 years in the California State Prison

- a possible “strike” on your record.

When someone willfully uses force or violence upon another – and no defenses apply – the person can be charged with battery under California Penal Code Section 242.

6. How Do I Fight a Penal Code 242

Battery Allegation?

Many people in California are wrongly arrested for the crime of battery. But simply getting arrested by the police doesn’t necessarily mean you will be convicted in court.

Below are some examples of the most common defenses that a San Diego criminal defense attorney could present on your behalf:

Self-defense / Defense of others

The California law of self-defense and the defense of others applies to situations where you are simply trying to protect yourself or another from imminent harm. If you reasonably believe that you must fight back in order to prevent harm, you are entitled to do so… provided that once the danger has passed, you stop your counter attack.

For example, if Adam is attacked by Phil, he is allowed to fight back to defend himself. But, if Adam knocks Phil to the ground and it is apparent that Phil won’t be getting back up to fight, Adam cannot continue to use force against Phil. If he does, self-defense will no longer apply.


Consent most typically applies in situations where one knowingly engages in a physical or contact activity. Playing a contact sport, engaging in a fight scene as an actor, operating on a patient as a surgeon… these are all examples of situations where you would be entitled to an acquittal for battery.

That said, you are only entitled to an acquittal as long as you don’t exceed the scope of the activity. This means that you must abide by reasonable expectations as to the appropriate level of touching required for the activity.

If, for example, a pitcher deliberately strikes a batter with a pitch, the pitcher commits a California battery under Penal Code 242 PC.


This defense to Penal Code 242 battery may apply when no “will” to inflict force or violence exists.

Examples include (1) inadvertently shoving someone while walking down a crowded street, or (2) unintentionally causing an auto accident.

Parental right to discipline a child

Although this defense is most commonly raised in connection with California Penal Code 273 (d) child abuse, you may find yourself in a situation where you are prosecuted for both offenses.

Parents are allowed to use physical force to discipline their children. However, the force must (1) be “reasonable”, and (2) not be excessive under the circumstances. For more information on this defense, please review our article on Penal Code 273 (d) | California child abuse laws.

If you have additional questions or would like to confidentially discuss your case with one of our California criminal defense attorneys, please don’t hesitate to contact us.

Call us today (619) 238-1905