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San Francisco Bay Area Assault and Battery Lawyer

Walnut Creek Assault & Battery Defense Lawyer

In criminal law, Assault and Battery are often viewed as a unified offense. Historically, laws treated the threat of physical injury as "assault", and the completed act of physical contact or offensive touching as "battery," but many states no longer differentiate between the two. In most states, an assault and battery is committed when one person attempts to or does physically strike another person, or acts in a threatening manner to put them in fear of immediate harm. Several states declare that a more serious or "aggravated" assault/battery occurs when a person attempts to or causes serious bodily injury to another, or causes injury or commits an assault with the use of a deadly weapon. This is the case in California as shown by Penal Code Section 243(d) – Assault with serious bodily injury; Penal Code Section 245(a)(1) or (a)(2) – Assault with force likely to cause great bodily injury and Penal Code Section 12022.5 et seq. which severely enhances a defendant's sentence if the defendant commits a crime with the use of a firearm.

"Assault" can be separate from "battery" where assault is seen as an act that creates the fear of an immediate battery and the battery is the act of unlawful touching. Wrongful touching doesn't need to inflict physical injuries and can be indirect such as throwing an object or spitting on someone. You could even possibly be liable for assault for pointing a toy gun at someone, where there was no ability to inflict physical harm.

In criminal law, assault and battery can be prosecuted as either a misdemeanor or a felony – depending upon the nature and seriousness of any injuries. Assault is the threat of violence upon another person. A person need not be injured to be the victim of an assault. Words alone usually don't constitute an assault. There must also be action and intent behind the words. However, a charge of Terrorist threats ( Penal Code section 422) can be an exception to this rule.

Battery is any offensive touching. A slap, grab or bumping can constitute a battery if the act is done with the intent to commit the battery. If an assault occurs by the use of a gun, knife, car, or any object used as a weapon (hands, feet, pool cue, chair leg, telephone receiver, shoe, etc.), the crime may be charged as a felony assault with a deadly weapon.


When a defendant has the consent to commit an act of assault or battery, the defendant may not be culpable. For example, consent exists in the context of authorized medical or surgical procedures. Another typical realm for consent occurs in sports. The intentional foul in basketball, the football tackle, the hockey check are anticipated parts of the game. It is possible for some conduct to be so far outside of what is reasonable, it can give rise to criminal charges – for example, intentionally hitting a player in the head with a hockey stick, an action that could cause serious and perhaps crippling injury or death. But in most instances rule violations are part of standard play and unlikely to support criminal charges.

Police Conduct

Police officers are privileged to apply the threat of or actual force, if necessary to affect a lawful arrest. Suffering injury as the result of reasonable force exerted by the police to affect a lawful arrest is not grounds for criminal charges. However, if excessive force is employed by the officer, this can provide a defense to charges of battery on an officer or resisting arrest (Penal Code Section 243(b), 243(c) or 148.)


A common defense to assault and battery is "self-defense". If a "reasonable person" in similar circumstances would feel threatened by an attack, that person may use all force reasonably necessary to prevent injury. An act of self-defense must ordinarily be proportional to the threat. If you believe a person is going to spit on you, depending upon the context it may be reasonable to push the person away, but it would not be reasonable to hit the person with a hammer.

A person may be expected to withdraw from the threat, if possible, before engaging in forcible resistance. However, if the defendant is in his or her own home and the intruder is not a member of the defendant's household, a defendant will typically not be required to further withdraw from the threat once the intruder has retreated to his own home.

Defense of Others

Defense of others is similar to self-defense, and usually occurs in the context of one family member or friend protecting another. Some jurisdictions permit a defendant to assert defense of others, even where the defendant is mistaken as to the existence of a threat, as long as the mistake is reasonable. Other jurisdictions don't permit this defense unless there was an actual threat or battery against the other person.

Voluntary (Mutual) Combat

Where the defendant voluntarily engages in a fight with another person for the sake of fighting and not as a means of self-defense, there is no right to claim self-defense. If two people voluntarily enter a brawl, it is unlikely that either will be able to claim self-defense. However, if for example one falls, and the other takes advantage of the situation by kicking him and causing injury, that act may well be considered to be unlawful use of force which would support criminal charges.

Defense of Property

Many jurisdictions allow the use of some amount of threat or force by a person who is seeking to protect his own property from theft or damage. In most jurisdictions, there is no privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury. Please note that there are some jurisdictions with extraordinarily broad laws, permitting the use of significant and even deadly force to defend the safety of one's home. However, the laws of each jurisdiction must be checked individually to determine the specific laws for that jurisdiction.


Words alone, no matter how insulting or provocative, don't justify an assault or battery against the person who utters the words. However, provocation may be a basis to mitigate a murder charge to voluntary manslaughter.

If you have been arrested or charged for assault and battery or spousal assault in San Francisco, Oakland, or throughout the Bay area or California, contact defense attorney Seth P. Chazin for a free consultation.


“The death penalty is a lie, a misguided mistake born of anger and frustration. Capital punishment has become a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. The death penalty is a grim, disturbing shadow formed by the legacy of racial apartheid and bias against the poor that condemns the disfavored among us, but corrupts us all. It’s the perverse symbol elected officials use to strengthen their ‘tough on crime’ reputations and distract us from confronting the causes of violence. It is finally the enemy of grace, redemption and all of us who recognize that each person is more than their worse act.”
- Bryan Stevenson