Battery (Pen. Code, §§ 242 & 243(d))

What is a Battery?

Battery is defined as any willful and unlawful use of force or violence upon the person of another.

Simple Battery under California Penal Code  §242 is defined as:

“Any willful and unlawful use of force or violence upon the person of another.”

Aggravated Battery under California Penal Code  §243 is defined as battery causing serious bodily injury.

There are two types of Battery. The first is “simple battery” which is a misdemeanor.  A conviction of simple battery may lead up to six months in jail and or a fine of $2,000, probation and restitution to the victim.

The second is “aggravated battery” which is a felony.  A conviction of aggravated battery can lead up to over four years in prison, a fine of $2,000 - $10,000, probation and restitution damages to the victim.

To be found guilty of simple or aggravated battery a number of elements must be proven beyond a reasonable doubt. The burden of proving each and every element rest on the prosecution.

An experienced attorney at The Law Offices of Bryan R. Kazarian knows how to attack each element and provide a strong defense.

What Must the Prosecution Prove to be Found Guilty of California Penal Code §242 “Simple Battery.”             

To be found guilty of Penal Code §242 Battery the prosecution must prove every element beyond a reasonable doubt.

To prove that the defendant is guilty of this crime, the prosecution must prove that:

1. The defendant willfully and unlawfully touched the victim in a harmful or offensive manner;

AND

2. The defendant did not act in self-defense or in defense of someone else or while reasonably disciplining a child.

Willful and Unlawful Touch

A willful and unlawful touch occurs when a person acts willingly or on purpose. According to the Penal Code “[t]he slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.The touching can be done indirectly by causing an object or someone else to touch the other person.”

This means that any touch can satisfy this element. There are, however, defenses to this element! (see defenses below).

The Touch Must be Harmful or Offensive

The second element the prosecution must prove beyond a reasonable doubt is that the defendant’s touch was (1) harmful or (2) offensive.

Harmful Touch

For a touch to be “harmful”, the touch must cause harm. There does not need to be any physical marks (bruises, black eye, cuts) to satisfy this element. Although many times the prosecution will use photos of the injury to satisfy this element to the jury. There does not need to any physical injury to the victim.

Example:

Defendant lightly slaps his girlfriend. The slap did not leave a bruise BUT the slap did cause harm to the victims soft facial tissue.

Offensive Touch

For a touch to be “offensive”, the touch must be unwanted to a reasonable person in the victims same or similar situation. This is an objective standard meaning that if a member of society was touched in the same way, that person would consider the touch offensive.

Example

  • Blowing cigarette smoke in someone's face.

  • Spitting on someone.

  • Slight touch against one's genitalia.

  • Pushing someone who cuts you off in line.

These are all “offensive” because they objectively cause someone to feel deeply hurt, upset, or angry i.e., offended.

Aggravated Battery Pen. Code, §§ 242, 243(d))

An Aggravated battery can be any battery which causes “serious bodily harm.” Unlike simple battery where there does not need to be physical injury, aggravated battery requires the victim to actually suffer serious bodily injury.

To prove that the defendant is guilty of this charge, the prosecution must prove that:

1. The defendant willfully and unlawfully touched the victim in a harmful or offensive manner;

AND

2. The victim suffered serious bodily injury as a result of the force used;

AND

3. The defendant did not act in self-defense/ or in defense of someone else.

Element (1) is the same as simple battery. Element (2) on the other hand is not.

What Is a Serious Bodily Injury?

According to the California Penal Code: “Such an injury may include but is not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement. The touching can be done indirectly by causing an object or someone else to touch the other person.”

This means that knocking someone unconscious, fracturing ones bones, internal and external physical damage all amount to “serious bodily harm.” In addition, to satisfy this element a defendant does not need to use his or her own body (fist, legs, elbows, fingernails) to cause bodily injury. If a defendant uses any object to touch the victim; the use of the object satisfies this element.

For example: If the defendant uses a broom, baseball bat, or golf club to strike the victim the contact of the object is deemed a part or extension of defendants body and satisfies this element.

Defenses to Simple and Aggravated Battery

The best possible defense to any battery charge is to contact an experienced attorney from The Law Offices of Bryan R. Kazarian to fight for your rights.

Self Defense/ Defense of Others

Self-defense is a defense to simple and aggravated battery. According to the California penal code “A defendant is not guilty of battery if they used force against another person in lawful self-defense or defense of another.”

To determine whether a defendant acted in defending him/herself or defending another person, the following elements must be proven.

The defendant acted in lawful self-defense or defense of another if:

1. The defendant reasonably believed that they or someone else was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;

And

2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;

And

3. The defendant used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to himself/herself or someone else or an imminent danger that they or someone else.

For a valid defense of self and others, the defendant must (1) actually believe imminent danger. Imminent danger is danger that is reasonably expected to cause death or serious physical harm immediately.

Example:

Someone pointing a loaded gun in your immediate direction. This would indeed constitute imminent danger because having a loaded gun aimed in your direction, if fired would indeed cause either death or at minimum serious physical harm which would be immediate.

For a valid defense of self and others, the defendant must also (2) believe that immediate use of force was necessary to defend. The defendant defended him/herself in a reasonable manner. Defendants action cannot be unreasonable.

Example:

Defendant attacked the gunman and punched him/her rendering them unconscious to prevent the gunman from firing his/her weapon.

For a valid defense of self and others, the defendant lastly must (3) not exceed reasonable force necessary to defend. Defendant must believe the threat was immediate. To not exceed reasonable force is to match the force necessary to prevent injury, it must not be excessive. Excessive force is more than the force necessary for such protection.

Example:

If defendant witnesses an attacker punching a bystander and decided to defend the bystander by pulling out a gun and shooting the attacker in the back. The defendants actions would constitute excessive force because the force ( shooting ) the attacker was more than necessary to protect the victim. The use of one's fist to cause harm is in no way equivalent to the force of a bullet.

On the other hand, if the defendant rushed to the aid of the victim and began punching the attacker. This would not be excessive because defendants act of punching the attacker matches the force used by the attacker.

If all three elements are proven, the defendant cannot be found guilty of simple or aggravated battery.  Each case is different, the best way to prepare a defense (if applicable) is to call The Law Offices of Bryan R. Kazarian, an experienced criminal defense attorney who knows and understand the law and its defenses will fight for your freedom.

Mutual Combat

Mutual Combat applies when two or more people expressly agree to engage in a fight. If one party wishes to stop fighting.

A person who engages in mutual combat or who starts a fight has a right to self-defense only if:

1. they actually and in good faith tried to stop fighting;

AND

2. they indicated, by word or by conduct, to his/her opponent, in a way that a reasonable person would understand, that they wanted to stop fighting and that they had stopped fighting;

AND

3. they gave his/her opponent a chance to stop fighting. If the defendant meets these requirements, they then had a right to self-defense if the opponent continued to fight.

What is Mutual Combat?

Mutual combat is defined as "a fight or struggle entered into by both parties willingly or a mutual fight upon a sudden quarrel and in hot blood upon equal terms where death (may) result from the combat. The evidence must show the confrontation was mutual, and both parties participated in the fight.” See, State v. Spates.

Example:

An example of mutual combat would be two rival gang members ( person A and person B) agreeing to meet in a secured location to fight one another. If one person (A) wishes to stop fighting (B) and the other (B) does not stop. At that point in time, the party wishing to stop fighting (A) may defend himself in a reasonable manner.

Mistake of Fact

The defendant is not guilty of simple / aggravated battery if they did not have the intent or mental state required to commit the crime because they reasonably did not know a fact or reasonably and mistakenly believed a fact. If the defendant’s conduct would have been lawful under the facts as they reasonably believed them to be, they did not commit insert crimes.

Example:

Defendant suffers from a seizure resulting in defendant tumbling down a stairwell knocking over three people in the stairway which causes injury. Here, the defendant had no control over his body and did not intend to cause injury. Therefore, the defendant could not be guilty of battery because the defendant did not possess the adequate intent to cause harmful or offensive touching.

Don’t wait! Call Now!

If you or a loved one have been charged with simple or aggravated battery, don’t wait! The best defense is to have an attorney from The Law Offices of Bryan R. Kazarian to FIGHT for YOUR freedom.