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By: Vince Imhoff, Esq. & Mike Riddell

In late 2004, Cameron Diaz and her pop-star boyfriend, Justin Timberlake, were walking out of a Sunset Strip nightclub when they encountered a paprazzi photographer. Diaz, the Charlies Angels star, hit the photographer in the neck, tripped him over, and stole his camera. Timberlake, looking at the photographer bleeding on the ground, yelled, What are you gonna do, man?

The crimes of assault and battery have been permeating American mass media for decades. Recently, Oscar winning actor Russell Crowe threw his cell phone at a hotel clerk and could face up to eight years in jail. Even decades ago, celebrity sex symbol Zsa Zsa Gabor made headlines when she slapped a police officer whom had just pulled her over. From nightly reports of gang violence to full coverage of celebrity trials, assault and battery are, unfortunately, a significant part of American society. Most recall the now infamous National Basketball Association brawl between the Indiana Pacers and Detroit Pistons fans in November of 2004. As a result of the melee, in which Pacer players charged Piston fans in the stands and on the court, five Pacers were charged with misdemeanor assault and battery.

What is Assault?

At its most simple level, an assault is merely an attempted battery; and, although it is more complex, a battery can generally be described as a successful and completed assault. For example, when Russell Crowe threw his phone at the hotel clerk, it became an assault upon the action of throwing. Since the hotel clerk was subsequently hit with the phone, the battery became complete because contact resulted. Therefore, an assault can be committed without a battery, but the reciprocal is not true: a battery cannot be committed without an assault.

Since 1872, the California Legislature has defined assault as an unlawful attempt, combined with present ability, to do violent injury on the person of another. Cal. Pen. Code 240 (2005). The California Supreme Court recently interpreted this language to mean that a defendant is guilty of assault only if he or she intends to commit an act which would be indictable as a battery. People v. Williams, 26 Cal. 4th 779, 787 (Cal. 2001). This means that the defendant must intend to commit an act likely to result in physical force and injury to another person. For Russell Crowe to be convicted, the prosecution would have to show that Crowe intended to hit the clerk with his phone. For a conviction of assault, it is the intent and not the resulting harm or contact which is dispositive. Thus, assault is often referred to as an attempted battery and can occur without the commission of a battery.

What is Battery?

However, every battery necessarily includes an assault. A battery in California is any willful and unlawful use of force or violence upon the person of another. Cal. Pen. Code 242 (2005). California case law has long established that merely touching a person may constitute a battery, even if it does not result in any bodily harm or pain. People v. Bradbury, 91 P. 497 (Cal. 1907). In People v. Martinez, a barefoot defendant kicked a motorcycle police officer, who was wearing motorcycle boots, in the shin. 3 Cal. App. 3d 886 (Cal. App. 1970). The court held that the kicking of the officer satisfied the definition of battery, although there was no injury suffered. The requirement of force can be either direct, like punching or kicking, or can be indirect. For instance, driving a car and forcing a passenger to jump from the moving vehicle constitutes a battery, even if there is no actual contact. See People v. Wright, 52 C.A.4th 203 (Cal. App. 1996).

Though most celebrities generally plea-bargain their way out of any jail-time, a simple battery and simple assault are both misdemeanors, punishable by a $1,000 or $2,000 fine and imprisonment in county jail for up to six months. There are different levels of punishment: whereas a common incident involving an injured photographer is the lowest levelAn assault by any means of force likely to produce great bodily injury is a felony punishable by up to four years imprisonment and up to a $10,000 fine. Cal. Pen. Code 245(a) (2005). Like simple assaults, a felony assault may be committed without any resulting physical injury. The main issue is whether the force used was likely to produce great bodily harm, and not whether great bodily harm was produced.

A battery is a felony when the victim sustains serious bodily injury, and punishment is imprisonment for up to four years. Cal. Pen. Code 243(d) (2005). The legislature has defined serious bodily injury to include loss of consciousness, concussion, bone fracture, loss of function of an organ, disfigurement, and any wound requiring suturing.

Felonies for Aggravated Assault and Battery

Modern statutes have created felonies for aggravated assault and aggravated battery which carry more severe penalties. An aggravating circumstance is usually when there is serious or grave intent or when the defendant is using extraordinarily dangerous means. The most common form of aggravating circumstance is an assault with a deadly weapon. Committing an assault with a deadly weapon, defined as an instrument likely to produce death or great bodily injury, results in felony assault. Cal. Pen. Code 245 (2005). Additionally, there are several other statutes designed to enhance the punishment for assault and battery if the offense is committed against particular people. For example, committing an assault with a deadly weapon against a police officer can increase the sentence for up to ten years.

Because every completed battery includes assault, a defendant committing a battery usually cannot be separately convicted for an assault. However, when the degrees of the assault and battery differ, there can be two separate convictions for assault and battery.

For example, while it may seem that felony battery and felony aggravated assault are interrelated, a felony of aggravated assault focuses on the amount of force used, and a felony battery focuses on the actual injury inflicted. In 1984, juvenile Ronnie N. shot a pedestrian in the mouth with a B.B. gun and was charged with both felony aggravated assault and felony battery. In re Ronnie N., 174 Cal. App. 3d, 731 (1985). In considering whether he could be convicted of both, the court reasoned that the force causing serious bodily injury does not necessarily have to be deadly force. The court illustrated that the act of someone pushing another, resulting in serious bodily injury, may not have the required deadly force to result in an aggravated assault. Therefore, the aggravated assault is not included in a felony battery and the two offenses could be tried separately.

At its most basic level, an assault is an act intending to cause physical injury. When the act is completed and contact results, the assault then becomes a battery. An assault can occur without a battery if no physical contact occurs, but a battery automatically includes an assault. As we have seen however, there are many varying degrees of assault and battery; and a defendant can be convicted of both separately.

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