ASSAULT & BATTERY CRIMES

  • Simple Assault (California Penal Code section 240)

     California Penal Code section 240 defines the crime of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another”.

To prove the crime of assault, the prosecution must prove, beyond a reasonable doubt, the following:

  • The defendant did an act that, by its nature, would directly and probably result in the application of force to a person;
  • The defendant acted willfully;
  • When the defendant acted, he or she was aware of facts that would lead a reasonable person to realize that his or her act, by its nature, would directly and probably result in the application of force to another person; and
  • When the defendant acted, he or she had the present ability to apply force to a person; and
  • The defendant did not act in self-defense or the defense of others. 

A person acts willfully when he or she acts intentionally or purposefully.

The prosecution is not required to prove that the defendant acted with the intent to break the law or to hurt someone.

Application of Force means to touch in a harmful or offensive manner.

The slightest touching can be enough if it is done in a rude or offensive manner. The touching does not have to cause pain or injury.

  • Battery (California Penal Code section 242)

California Penal Code section 242 defines the crime of battery as “any willful and unlawful use of force or violence on the person of another”.

To prove the crime of battery, the prosecution must prove, beyond a reasonable doubt, the following:

  • The defendant willfully and unlawfully touched another person in a harmful or offensive manner; and
  • The defendant did not act in self-defense or in the defense of others or did not use reasonable force in the discipline of a child.

Unlawful touching is given the same definition as in the crime of simple assault (Penal Code section 240)

  • Assault with a Deadly Weapon/Firearm/Machine Gun/Semi-Automatic Firearm/Force Likely to Produce Great Bodily Injury.

To prove assault with a Deadly Weapon/Firearm/Machine Gun/Semi-Automatic Firearm/Force Likely to Produce Great Bodily Injury, the prosecution must prove, beyond a reasonable doubt, that

  • The defendant did an act with a deadly weapon other than a firearm/a firearm/machine gun/semi-automatic firearm
  • That by its very nature would directly and probably result in the application of force and
  • The force used was likely to produce great bodily injury.
  • The defendant acted willfully, that is, deliberately and intentionally,
  • A reasonable person in the same or similar circumstance should have known that the act would probably result in the application of force or serious bodily injury to someone
  • When the defendant acted, he or she had the present ability to use a deadly weapon other than a firearm/firearm/machine gun/semi-automatic firearm, force likely to produce great bodily injury
  • The defendant did not act in self-defense or the defense of other persons. If there is sufficient evidence of self-defense or defense of others, the court has a duty to give this instruction.
  • Battery causing Serious Bodily Injury (California Penal Code section 243 (d))

To prove the defendant guilty of battery causing serious bodily injury, the prosecution must prove, beyond a reasonable doubt, that

  • The defendant willfully and unlawfully used force or violence on the person of another and
  • The defendant’s use of force or violence caused another to suffer serious bodily injury.
  • The defendant was not acting in self-defense or the defense of others when using force or violence on the person of another.

       

ASSAULT & BATTERY DEFENSES

Licensed Professional Investigators:  A Licensed Professional Investigator (LPI) is the heart and soul of every defense investigation. Criminal Defense Attorney, Stephen R. Brodsky uses former police detectives  to conduct defense investigations for his clients.  An experienced LPI photographs, diagrams and evaluates a crime scene for new evidence, obtains complete statements from difficult and reluctant witnesses, consults with Mr. Brodsky regarding other potentially important defense evidence. In assault & battery investigations, the LPI finds witnesses to provide alibis, establish the lawful use of self-defense or defense of other persons, testify as to an alleged victim’s reputation for violence and our client’s reputation for peacefulness and non-violence.

Licensed Professional Experts:  Certain crimes call for the use of special experts who can help Criminal Defense Attorney Stephen R. Brodsky interpret evidence that could be crucially important in developing a successful defense strategy. For example, in assault and battery crimes, a use of force expert will often be used to establish that our client used a reasonable amount of force in his or her self-defense or defense of other persons.

Defenses:

You didn’t commit an assault, battery, assault with a deadly weapon/firearm/machine gun/Force likely to produce great bodily injury. 

If your defense is that you did not commit an assault or battery crime, Criminal Defense Attorney Stephen R. Brodsky will assign his Licensed Professional Investigator to conduct the defense investigation. The LPI will obtain statements from important defense witnesses establishing an alibi or that the client acted in self-defense or defense of other persons, show identification photo lineups to prosecution witnesses to show someone other than our client committed the assault or battery crime, draw a diagram and photograph the crime scene and examine the crime scene for other evidence important to the defense.

If the prosecution witnesses have made a mistaken identification of our client.

If prosecution witnesses have mistakenly identified you as the perpetrator of an assault or battery crime, our LPI will often show a photographic line-up containing six photographs of similar looking individuals of the same racial or ethnic group to prosecution witnesses  who have falsely identified our client at a very suggestive identification procedure such as a curbside lineup  where police investigators take a crime victim or witness to a police car in which our client is sitting handcuffed and alone in the back seat. Scared or traumatized crime victims or witnesses often make an erroneous identification of our client, because most people believe that if a person has been placed in a police car, they have probably committed a crime.

Our LPI will assemble a fair photographic lineup containing the photos of 6 people of the same sex, racial and ethnic background, with similar facial features and characteristics. Often times, the crime victim or witness will identify someone different than our client in this much fairer identification procedure. We will then reveal this different identification to the District Attorney and attempt the DA to either reject charges or dismiss charges if they have already been filed against our client.

If you acted in lawful self-defense or in the defense of other persons

Our LPI will interview important defense witnesses and obtain sworn statements from them that our client was not the aggressor in a violent confrontation or fight and that our client acted in lawful self-defense or in the defense of other persons while using force, a deadly weapon or firearm against another person who was actually the real aggressor in the fight or violent confrontation.

The force or violence you used was accidental or unintentional and therefore lawful.

If you didn’t mean to use force or violence, you are not guilty of an assault or battery crime. The use of force or violence has to be directed purposefully at another person for it to be unlawful.

The other person consented to the physical contact which, therefore, lawful.

You’ve just finished your first full contact football practice and the testosterone is flowing very rampantly in the locker room after practice. Your arch rival and chief competitor for the first string tail back position is strutting around like a conceited fool. You come up to your arch rival and bet him you can make him quit in an arm punching contest. This really happened to Criminal Defense Attorney, Stephen R. Brodsky as a 20 year-old Sophomore running back for Hofstra University.  Mr. Brodsky confronted his main rival for the first string tail back position with a challenge to an arm punching contest.   Mr. Brodsky and the other combatant exchanged wickedly powerful punches to each other’s right arm. Both parties mutually consented to the violent behavior; therefore, neither party is guilty of a battery. Both combatants did not give up. Teammates separated the two fools before they could permanently injure each other.

The other person threatened to inflict death, serious bodily injury or bodily injury.

Although you punched a strange man in the face, you did so after he threatened to kill or maim you. This other man had a gun sticking out of the belt on his trousers when he threatened you.  His words, coupled with his present ability to kill or badly injure you,  In this example, your use of force and violence against this stranger constituted lawful self-defense, because you reasonably feared imminent death or serious bodily injury upon hearing the stranger’s death threat and seeing a firearm on his person.