What is the Difference Between Assault and Battery?

“Assault” and “battery” are two crimes that are related but distinct.  Many states only have the crime of assault and merge the two offenses into one, but they might keep both terms as distinct actions for civil lawsuits.  California uses both terms for criminal law, separating the two into distinct offenses that are often charged together.

If you were charged with assault, battery, or both, talk to an attorney about your case.  These charges can carry serious penalties that lead to high fines, long jail terms, and a criminal record.  For help with your assault or battery case, contact the Law Offices of Bamieh and De Smeth’s assault and battery defense lawyers today at (805) 643-5555 to schedule a free legal consultation.

Assault vs. Battery in California

Battery is the crime of actually touching someone to harm them, while assault is the crime of causing the anticipation that the victim will be hit.  For example, if a man pulls his hand back in a fist and threatens to punch a victim, he has committed an assault. If a man actually punches the victim, he has committed battery and potentially some other crimes.  Essentially, assault is the potential for physical contact, whereas battery is the actual physical contact.

Since assault is an attempted battery, an incomplete battery can usually be charged as assault.  If you hit someone, you usually must have attempted to hit them, so you can almost always be charged with assault alongside battery charges.

The Definition of Assault and Battery in CA

California Penal Code 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  On the other hand, Penal Code 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.”

There are some important factors to break down for each of these offenses, as each one has limitations.


Assault must have some sort of attempt to injure another.  Merely telling someone you will hurt them is not enough.  Technically, drawing back your fist with the threat of attack but no intention to actually throw a punch would not be “an attempt … to commit a violent injury,” so it should not qualify as assault.

Additionally, with assault, there must be a “present ability” to injure the other person.  If you are too far away or are restrained, you may not be able to actually cause injury and should not be charged with assault.


Police and prosecutors must prove that the battery was “willful” to convict you.  Accidental or reckless injury should not be charged as battery, though other lesser charges might be applicable.

Battery also requires a use of force or violence, but other crimes may apply to non-forceful injuries.  For instance, poisoning someone may not involve “force or violence,” but it is still a crime.

Battery also requires violence or force against a person.  Causing damage to an object is usually illegal under other statutes, but it should not constitute battery.  If the item you damage is very close to the victim, such as in their hands, it may still constitute battery to strike that object, e.g., knocking a plate out of their hands.

Penalties for Assault and Battery in California

Assault and battery are both serious crimes of violence that can carry high fines and jail time.  Both crimes are typically punished with up to a year in prison in addition to a fine.  For assault, the fine is up to $1,000.  For battery, which usually causes more harm than assault, the fine is up to $2,000.

Assault and battery offenses committed under more serious or dangerous circumstances can result in higher penalties.  For instance, the offense is usually upgraded if you attack or attempt to attack a police officer, nurse, EMT, or another emergency responder.

There are also upgraded penalties for committing these offenses on school grounds.  This can include any school from elementary school to high school and even college campuses.

The crime typically called “aggravated assault” is an upgraded form of battery.  This usually applies to situations where you attack a police officer or where you use a deadly weapon during the attack.  Something like a knife or a gun is obviously a “deadly weapon,” but many household items, like a frying pan or a baseball bat, could be considered deadly weapons, too.

Assault and Battery Defense Lawyer in Ventura, California

If you or a loved one was charged with assault or battery in California, call our law offices today.  The Ventura assault and battery lawyers at the Law Offices of Bamieh and De Smeth represent the accused and fight to protect their rights and get charges dropped and dismissed.  For help with your case and to schedule a free, confidential consultation, call our law offices today at (805) 643-5555.

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