California Penal Code section 242 defines “simple battery” as having three main elements:
- Unlawful and willful;
- Application of force or violence;
- Upon the person of another.
The touching, contact, or force can be accomplished indirectly by causing an object, or someone else, to touch the other person.1
California Penal Code section 243(c)(2), “battery on a peace officer” applies to the specific situation where the application of force or violence is directed towards a peace officer (defined below). Therefore, to be charged with this offense, the defendant had to know or reasonably should have known that the victim is a peace officer engaged in the performance of his or her duties. 2.
Simple Battery Vs. Aggravated Battery
There are two types of battery: “simple battery” (battery which results in either no injury or slight injury) which is filed as a misdemeanor battery and “aggravated battery” (battery which results in a more serious injury, or the battery is committed against certain “protected persons,” such as peace officers, or firefighters) which may be filed as a misdemeanor or felony. In other words, even when the battery is committed against protected persons, if it results in no injury or a slight injury, it will be filed as a misdemeanor but with an increased maximum sentence. 3.
Examples of injuries:
While the defendant was being handcuffed, he was trying to resist arrest by pushing up so hard against the police car that he knocked down the police officer onto his back, causing the officer to sustain serious and permanent back injuries. In this case, the defendant will be charged with aggravated battery, because the battery was against a peace office during the performance of his lawful duties, and the battery resulted in a serious physical injury.
On the other hand, if the defendant merely struggled to get out of the handcuffs and caused the officer to be pushed up against the car without incurring a serious injury, such battery will be filed as a simple misdemeanor battery.
Many people consider “assault” and “battery” to be the same offense, but they are two distinct crimes. An “assault” is essentially an attempt to injure another person.4 Whereas “battery” is the unlawful use of force or violence upon another person.5 The key distinction is that an assault does not require any physical contact or injury, whereas a battery requires some type of physical contact regardless of how slight.
Assault: The distinction can be illustrated by the following example: a man with a severe case of road rage is provoked by the fact that a woman gets ahead of him in the freeway lane while entering the freeway. Enraged to such a degree that he is determined to ram his car into hers, he speeds up and engages in threatening driving behavior by swerving closer and closer to her car as if he is going to hit her car. The woman is terrified of getting hit by the man’s car so she keeps swerving to the right to avoid colliding with his car. Even though the man’s car never collides with the woman’s car, the man can be charged with assault, because he engaged in the willful and violent behavior of attempting to collide with the woman’s car on the freeway and he has the present ability to carry out the threat. 6
Battery: If the man’s car actually succeeds at colliding with the woman’s car, the man can be charged with both assault and battery. However, because assault is a lesser included offense of battery, he can only be convicted of one or the other. 7
To prove that the defendant is guilty of “battery on a peace officer” under Pen. Code §243(c)(2), the prosecution must prove the following facts or elements:8.)
- The victim was a peace officer performing the duties of a peace offıcer9
- The defendant willfully and unlawfully10;
- Used force or violence11 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. ((Elements. Penal Code Sections 242, 243(a); see People v. Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching])) against a “peace officer.”
- When the defendant acted, he/she knew, or reasonably should have known12 that the victim was a peace officer who was performing his/her duties13.
- The peace officer sustained an injury this last element is only applicable if the charge is a “felony battery against a peace officer.” 14
A defendant’s act has to be willful to qualify for battery, meaning the defendant intended to carry out the act. Any touching may qualify, no matter how slight, whether it was direct or indirect (i.e. touching that occurred when defendant used another instrument, or another person). Moreover, to be charged with this offense, the defendant has to know or should know that he is battering a peace officer. If he has no reason to know that the victim is a peace officer, he cannot be convicted of battery. Furthermore, the defendant cannot be charged with battery if he/she committed it against an officer who was not lawfully performing his/her duty.
If the defendant committed battery against a peace officer after the officer has unlawfully arrested or unlawfully detained the defendant, the defendant cannot be charged with this offense.
There are various defenses that can be asserted on your behalf to fight a charge of battery on a peace officer. Here are the most common ones:
- Self-defense/Defense of Others: If the defendant acted in self-defense or defense of others, he/she cannot not be convicted of battery on a peace officer. To assert this defense, the defendant has to have a reasonable belief that he/she or another person is likely to be physically harmed and is justified in using force that is proportionate to the threatened force to repel the attack.
- Peace Officer Not Performing Lawful Duties: If the officer is trying to effect an “unlawful arrest” or “detention,” or if he/she applied “excessive force” against the defendant, the defendant is justified to act in self-defense as long as the defendant uses force that is proportionate to the threatened force to repel the attack. 15
Example: Sam was driving at the speed limit and violated no traffic laws when he was pulled over by a police officer, who ordered him to come out of the car with his hands above his head and then slammed Sam against the car and started handcuffing him. The police officer did not read Sam his rights or tell him why he was being arrested. Sam tried to explain to the officer that he got the wrong person and when the officer did not listen, Sam struggled with the officer in his attempt to break free and ended up knocking the police officer down on the floor. Sam cannot be charged with battery, because he was acting in self-defense and during what appears to be an unlawful arrest and possibly use of excessive force on the part of the officer.
- Accident: This defense applies in a situation when the defendant does not willfully inflict force or injury onto a peace officer.
- Causing a car accident that involves a police car
- Accidentally tripping or shoving a police officer in a crowd of people
- False Allegations: If you were falsely accused of committing battery on a peace officer, you need a good attorney who can find any inconsistencies in the evidence to show that you were not the perpetrator of the crime. The Aizman Law Firm is ran by a former prosecutor who knows how to investigate such cases and to provide the best defense possible. If you were falsely accused and need help getting out of the situation, do not hesitate to give us a call.
This offense could be filed either as a misdemeanor or a felony, depending on the injury to the peace officer.
A simple battery on a peace officer that does not result in a serious injury will be filed as a misdemeanor offense and is punishable by a fine not exceeding $2,000, or by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment. 16
A battery that results in an injury to a peace officer will be filed as a felony and is punished more severely by imprisonment of up to 16 months, 2 or 3 years in state prison, or for 2, 3, or 4 years if the officer sustains a serious bodily injury, or by a penalty fee of up to $10,000 fine, or by both imprisonment and fee.
- Battery Causing Serious Bodily Injury (“Aggravated Battery”):
Under California Penal Code 243(d) – Battery Causing Serious Bodily Injury, applies when a battery is committed against any person and serious bodily injury is inflicted on the person. Such battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. 17.)
- Assault With a Deadly Weapon (“Aggravated Battery”):
California Penal Code 245(a)(1) provides that anyone who commits an assault upon another person with a deadly weapon or instrument other than a firearm, will be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for up to one year, or by a fine not exceeding ten thousand dollars $10,000, or by both the fine and imprisonment. 18
- California “Three Strikes” Law:
If a defendant commits an “aggravated felony” by either inflicting serious bodily injury or assault with a deadly weapon against a peace officer pursuant to Pen. Code, sections §243(d) or 245(a)(1), the conviction(s) for the offense will result in a strike on the defendant’s record.
If would like to speak to an attorney to discuss a potential charge of battery on a peace officer, you can contact the Aizman law firm at 818-351-9555 for a free consultation.
Request A Free Consultation 818-351-9555
- Penal Code Section 242: A battery is any willful and unlawful use of force or violenceupon the person of another [↩]
- Penal Code Section 243(c)(2 [↩]
- Penal Code Section 243(c)(2 [↩]
- Penal Code Sections 240-241 [↩]
- Penal Code Sections 242-243 [↩]
- Penal Code 240. [↩]
- Penal Code Section 242; CALCRIM, No. 960. [↩]
- Penal Code 243(c)(2 [↩]
- A “peace officer” is anyone who is engaged in the duty of law enforcement, including but not limited to the following persons: CHP officer (California Highway Patrol), police officer, sheriff, marshal or deputy marshal of a superior court or county, port warden or port police officer, any inspector or investigator employed in such capacity in the office of a district attorney. Penal Code, § 830 et seq. [↩]
- Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. Willful Deﬁned. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]. [↩]
- The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d 518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr. 172, 479 P.2d 372]]. [↩]
- Whether you knew or should have known that you are dealing with a peace officer turns on several factors, such as whether the officer was: in uniform; engaged in acts that are typically performed by peace officers, such as performing a lawful arrest by placing you or someone else in handcuffs; or driving in a marked police car. Penal Code Sections 243(c)(2). [↩]
- “Performance of duty” in this context means that the peace office is making or attempting to make a lawful arrest; accepting or exercising custody over a person who has been arrested by a private citizen; lawfully detaining or attempting to detain a person for questioning or investigation; using reasonable force to effect a lawful arrest or detention. Penal Code Section 243(c)(2). [↩]
- Physical Injury Deﬁned. California Penal Code Section 243(f)(5); People v. Longoria (1995) 34 Cal.App.4th 12, 17–18 [40 Cal.Rptr.2d 213; CALCRIM No. 945. [↩]
- A peace officer is not lawfully performing his/her duties if he/she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his/her duties. For example, a peace officer is not lawfully performing his/her duties when an arrest or detention is unlawful and/or when force is unreasonable or excessive. If a defendant is charged with violating section 243(c)(2) and the arrest is found to be unlawful, a defendant cannot be convicted of that section. People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541]. An “unlawful arrest” includes both an arrest made without legal grounds and an arrest made with excessive force. People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159]. [↩]
- California Penal Code Section 243(c)(2); When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment. [↩]
- Penal Code Section 243(d [↩]
- Penal Code Section 245(a)(1). [↩]