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If you use unlawful force or violence against someone, you may be committing a battery under California Penal Code 242. The law defines a battery as “any willful and unlawful use of force or violence upon the person of another.” However, if that touching causes a serious injury to the person, the battery is considered more serious – often referred to as an aggravated battery offense. Battery causing a serious bodily injury is an offense under California Penal Code 243(d).
The simple battery offense under Penal Code 242 is a misdemeanor. Battery causing serious bodily injury, however, can be treated as either a felony or a misdemeanor, depending on the circumstances of the offense.
Summit Defense Attorneys include a former police officer and former prosecutors – this means that we have inside knowledge and experience of how this offense is charged and prosecuted from the other side. We often defend cases of people wrongly accused of battery causing serious injury – you may be ‘not guilty’ of this offense if you:
If you are charged with battery causing serious bodily injury, you are exposed to potential jail time, large fines, probation, and possibly having a felony on your record for life. The best way to reduce your exposure to these kinds of serious penalties is to have an experienced Summit Defense attorney to fight the case against you. We have handled many battery cases where we have been able to influence the process by presenting mitigating evidence to the DA to have charges dismissed or reduced.
Further, as an offense of violence, non-citizens can be subject to deportation if convicted – which is why we have a specialist immigration attorney on our team, ready to assist in any case where a non-citizen’s immigration status is put at risk.
Nothing – you are not required to speak to the police at any stage. You only have to tell the officers your name and address, and show them some identification if requested. Other than that, it’s best to not say anything at all – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help 24 hours a day, 7 days a week.
If you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. You should take full advantage of these rights and not say anything – even in the aftermath of a fight or arrest when you may be angry, hurt, or upset.
We understand that being arrested, and then going through the booking process, can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. However, keep in mind that nothing you say is going to stop the police from charging you – by the time they arrest you, they have already made up their minds against you, no matter what they say.
Summit Defense Attorneys defend many cases and it is almost never a good idea for a suspect to talk to the police – in fact, many people have hurt their cases by doing so. We have the experience necessary to deal with the police and the DA, which is why the early intervention of an experienced attorney is by far your most effective defense strategy.
No, you probably won’t – most criminal defendants are entitled to bail. In some cases, bail is not necessary and you will be released on your own recognizance. In other cases, you will need to post bail – and it may be set at a relatively high amount, depending on the total number and the seriousness of the charges you are facing.
The amount of bail for each defendant is set in accordance with the bail schedule that is applicable in that county, and is determined once the booking process is completed at the police station. Once it is paid, you can leave custody. If you are not able to immediately secure your release for any reason, we will do everything to ensure that you are released on bail as soon as possible. Summit Defense’s first priority will be to use every effort to keep you out of custody following an arrest.
In California, battery causing serious bodily injury can be treated as either a felony or a misdemeanor, depending on the circumstances of the offense. The Prosecutor will consider various factors when deciding whether to file the charge as a felony or a misdemeanor, including:
We are involved in many cases at the pre-file stage, and in a lot of those we can present evidence and arguments that influence the Prosecutor’s decision on the charges. If, despite our best efforts, we are not able to completely prevent charges being filed, then we fight to have charges filed as misdemeanors. This limits our clients’ exposure to the most severe penalties. For example, in cases where we can demonstrate that both parties were involved in some kind of argument or fight that led to the alleged offense, we can often have the matter filed as a misdemeanor, if not completely dismissed.
To establish a charge of battery causing serious bodily injury under Penal Code 243(d), the Prosecutor must bring evidence against you to prove the following elements beyond reasonable doubt:
Willfully and unlawfully touched the alleged victim
To prove that the touching was ‘willful’, the Prosecutor must prove that you touched the alleged victim on purpose – not accidentally or inadvertently. Unlawful touching refers to touching done in a “rude or angry way. Making contact with another person, including through his or her clothing, is enough.” So, for example, if you are in the middle of a heated argument with someone, and you reach out to shove them, that may constitute a willful and unlawful ‘touching’. On the other hand, if you are using your hands to make gestures during the argument, and the other person moves and you accidentally hit them while gesturing, that would not be a willful or unlawful touching.
In the case of a basic battery offense under Penal Code 242, the touching does not have to cause pain or injury of any kind. However, for this offense of battery causing serious injury under Penal Code 243(d), a serious bodily injury must be caused – as seen in second element of the offense.
Harmful or offensive manner
Again, this element refers to the way in which the ‘touching’ is done. To touch someone in a harmful or offensive manner does not necessarily mean that you injure them (that is a separate element of this offense), but just requires that some kind of offensive contact occur. Further, the contact does not have to be direct – it could be through the use of an object or weapon as well. This means that acts that are obviously harmful and offensive are covered – such as punching or kicking someone – as well as less obvious acts that don’t physically hurt someone, such as spitting or flicking.
Alleged victim suffered serious bodily injury
It is not enough that the alleged victim received a physical injury as a result of you touching them, the injury must be serious for this charge to succeed. The California Criminal Jury Instructions explain that a ‘serious bodily injury’ is as “a serious impairment of physical condition. Such an injury may include, but is not limited to: loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement.”
If you are accused of this offense, but the victim’s injury is not really that serious, then you cannot be found guilty of the charge against you.
For example, consider someone who is slapped in the face. Their cheek might be red, and even display a handprint. There might even be some mild swelling, and some bruising may result. However, that kind of injury is not the kind that fits the definition of a ‘serious bodily injury’. However, if the person who slaps them is wearing a large ring, uses a lot of force, and hits them in the area of their eye, such that there is significant injury done to the person’s eyeball and eye socket and they lose some vision in that eye permanently, then the injury would likely fit the definition required to satisfy this element of the offense.
Injury is as a result of the force used
The injury that the alleged victim suffered must have been caused by you touching them. This usually goes without saying – for example, if someone is pushed down the stairs, and they break their leg, then their broken leg is a result of being pushed down the stairs.
However, there are some instances where the connection between the force used and the injury suffered is not as clear. What if someone is pushed down a flight of stairs, but a door at the bottom of the stairs that leads out to the street is open, and they stumble out onto the street where they are hit by a car and injured? In cases where unforeseen injuries happen, it can be hard for the Prosecutor to prove that the injury was really a result of the force used by the defendant.
The California Criminal Jury Instructions provide that, an “An act causes injury
if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” To decide whether a consequence is natural and probable, the court must “consider all the circumstances established by the evidence.”
This area of the law can be a very complex one to deal with. It takes an experienced criminal defense lawyer to be aware of these kind of factual issues in a case, and to be able to put together a winning argument.
We very often hear the terms ‘assault’ and ‘battery’ used together, or interchangeably, but they are actually different offenses. In California, there is one important distinction to keep in mind – any battery offense under Penal Code 242 and 243 requires proof of unlawful touching that is done in a harmful and offensive manner. On the other hand, any kind of assault offense under Penal Code 240 and 241 simply requires that the Prosecutor prove that the defendant acted in a way that might have inflicted physical harm or unwanted touching on someone else – even if no contact was ever actually made with that person.
In cases where the defendant is accused of battery causing serious bodily injury, other charges may be considered, depending on the facts of the case. Additional or alternative charges become relevant in two ways – firstly, the authorities will sometimes charge people with other offenses because they believe that there is evidence that more than one offense was committed. For example, it is very common in these cases for the police to allege that an assault also took place, often before the alleged battery.
Secondly, in situations where the case against the accused person for battery causing serious bodily injury is not particularly strong – for example, the prosecution may not have particularly convincing evidence to prove that the injury is really serious – then, depending on the circumstances of the case, the Prosecutor may file additional charges, as a kind of back up. In some cases where there is room for negotiation they may not be willing to drop the charges altogether but they may accept a plea to a lesser charge – this can save you time in prison, or a permanent felony conviction. In those kinds of situations, however, you need a lawyer from Summit Defense Attorneys to negotiate with the Prosecutor on your behalf – we are experts in this area of law, and we can often intervene on your behalf before charges are formally filed.
There are various assault offenses under Penal Code 240 and 241. ‘Simple’ assault is always a misdemeanor, and usually treated less severely than battery.
There are also various battery offenses, under Penal Code 242 and 243. ‘Simple’ battery – that is, one that does not result in injury and where the victim was not in a class of protected people – is always filed as a misdemeanor, and is treated less seriously than battery causing serious bodily injury, or battery on a police officer.
This is a misdemeanor offense under Penal Code 148(a)(1), which makes it illegal to resist, delay, or obstruct an officer who is trying to effect an arrest – or, in fact, carry out any other of their lawful duties. This charge might be relevant in your case, for example, if the police allege that you were involved in a scuffle with them when they tried to arrest you.
Disturbing the peace
This is an offense under Penal Code 415. It relates to activities such as unlawful fighting, unreasonably loud noise, and using offensive language – so it does not have much to do with the offense of battery causing serious bodily injury. However, it is a relatively minor offense that is filed as a misdemeanor and, in some cases, can be dealt with as a less serious infraction. This means that it is often a charge that is considered when negotiating a plea bargain, and can be especially relevant if the circumstances of the alleged offense involve a fight between two people.
I didn’t do it!
Unfortunately, people can be falsely accused of this offense. It could be that the police or a bystander are mistaken about your involvement in an incident, or sometimes an alleged victim has a motive to lie. Maybe you did not touch anyone at all, maybe your actions were involuntary, or perhaps your actions were misinterpreted – whatever the case, Summit Defense Attorneys work to clear your name.
We know from experience that victims do lie, and that innocent people have been falsely accused or wrongly convicted as a result. This can happen for many reasons – some police lie to protect themselves or another officer, or an alleged victim falsely accuses someone out of anger or a desire for revenge.
In cases where false allegations are made, it takes an attorney who is particularly skilled in deconstructing the evidence, and finding the holes in the police case, to get through collusion or lies. For example, in one case that we defended, our client was accused of hitting another man in the face with a baseball bat. The incident allegedly happened at a house party one weekend. The accusation against our client was that he had followed the victim inside the house from the backyard, to get some more beers from the fridge in the kitchen. The man started arguing with his girlfriend, who was also in the kitchen, and our client was said to have picked up a baseball bat and hit the victim in the face, resulting in a broken nose.
However, our client told us that what really happened was that the man and his girlfriend had started arguing and our client got between them, while holding the baseball bat, to stop the man being physically violent to his girlfriend – as he was threatening to do. The man got more and more out of control, was pushing furniture around, and eventually head-butted the side of the fridge before storming out in a rage. Unbeknownst to our client, the man went out the front and called police on his cellphone.
When the police arrived at the house, they found the alleged victim waiting for them at the front of the house, with a bloody nose, the party still in progress out the back, and our client in the kitchen in an argument with the man’s girlfriend, and still holding the bat. The alleged victim accompanied the police into the house, pointing out our client, and insisting, “She saw it! She saw him smack me with the bat!” and urging his girlfriend to agree with him. She told police that, in the course of breaking up the fight between her and her boyfriend, our client had indeed hit him in the nose with the baseball bat.
When our attorney heard what had happened, she immediately sought the criminal records of the alleged victim and his girlfriend. She also obtained records from the police that recorded complaints that the girlfriend had made against man in the past, including several calls to 911 requesting police assistance when her boyfriend was threatening her. Our attorney was also able to speak to several mutual friends of the couple, and our client, and confirm that the alleged victim had a history of violence, rage, and self-harm. With further information from friends, we were able to obtain a statement from a witness who had seen the victim hurt himself before when in a rage, and had taken him to hospital for treatment.
Given the hard work of our attorney, we were able to take a significant amount of exculpatory evidence to the DA who was considering charges in the case. We were able to show that the police had not really delved deeply enough into the background of the parties involved in the matter. We showed that there was significant doubt as to whether our client had acted violently at all, and that the credibility of the alleged victim and his girlfriend, the other witness, was highly questionable. In the circumstances, the DA agreed to consider the matter further, and we were eventually able to persuade them to drop the case against our client completely.
It was an accident!
To prove this offense, the Prosecutor must show that you acted willfully – that is, that you touched the alleged victim on purpose. This means that if your harmful contact with the victim was accidental or unintentional, then the charge must fail.
For example, if an incident happens in crowded or heated circumstances, it is easy for an injured party to mistake someone’s unintentional actions for them purposefully lashing out. Imagine a very crowded dance area at a music festival, for example, where a much larger man accidentally harms a smaller woman. He may not have meant to strike her with his arms, or stomp on her feet, but it could be easy for her to think otherwise if she is badly hurt.
Insufficient evidence and reasonable doubt
The Prosecutor must prove all the elements of any criminal charge beyond reasonable doubt. However, a lack of evidence does not always stop charges from being filed. In some cases, the injury is really not serious enough to warrant this charge being filed in the first place. In other cases, especially where both parties have suffered some injury, or the police investigation is not particularly thorough, it can be easy for charges to be filed without sufficient proof, and based only on the word of a police officer or a single witness – usually the alleged victim – against the accused.
Our attorneys include ex-police officers and an ex- District Attorney – this experience on the other side means that we know how common it is for charges to be pursued where evidence is weak, or where the case is built only on the word of the alleged victim against the word of the accused. And we know how daunting it can seem to be one person against all the resources of the police and prosecution. It’s very tempting to think, “Who is going to believe me?!” when the police have built a case against you, or where someone has been injured and it looks bad. But a Summit Defense attorney will be on your side, will always insist that the prosecution meet their burden of proving any charge beyond reasonable doubt, and will not let baseless charges stand.
A lack of evidence, or a lack of evidence strong enough to support a charge beyond reasonable doubt, is one of the most common defenses relied upon. As demonstrated by the case of our client breaking up the fight between the man and his girlfriend, described above, the police do not always present a case that tells the full story. If the evidence that the Prosecutor is relying upon in your case is not adequate, Summit Defense Attorneys will challenge the prosecution case and make sure that you are not unjustly convicted.
I was acting in self-defense/defense of another person!
Summit Defense Attorneys have defended many cases where our client acted in self-defense. In the case of a charge of battery causing serious bodily injury, you can claim either self-defense, or that you were acting to defend someone else.
The basic law of self-defense or defense of another is as follows – once you raise the issue as a defendant, the Prosecutor must prove beyond reasonable doubt that you were not acting in self-defense. As set out in the Judicial Council of California Criminal Jury Instructions, the law provides that you acted in lawful self-defense if:
In deciding whether your belief that they were in imminent danger was reasonable, the court must look at all of the circumstances. In many battery causing serious bodily injury cases, the circumstances involve someone involved in a fight or conflict trying to keep themselves safe. There might be a history of violence or threats from the other party, or the person you were trying to protect might be a particularly vulnerable person, such as a child. If a case like this goes to trial, your attorney will make sure that the judge or jury is aware of all of the relevant factors so as they can assess whether you responded reasonably or not.
In the end, once the defense has been raised, the prosecution has the burden of proving beyond reasonable doubt that you did not act in lawful self-defense. Otherwise, you must be found not guilty of the offense.
A case that we successfully defended demonstrates how this defense works. Our client was charged with battery causing serious bodily injury in relation to inflicting a serious head injury on another man. The incident happened at a bar, late one night. Our client was at the bar with one other friend, and they wanted to play pool. The alleged victim was playing pool with two of his friends. Although our client had put down his quarters on the table edge to reserve the next game, the alleged victim and his friends would not let our client and his friend play. A verbal argument ensued, and the bartender got involved, telling the alleged victim and his friends to let the others play or leave the bar.
More words were exchanged between the men, and the alleged victim angrily left the bar, threatening to return with more friends to beat up our client. Our client thought that the man was just mouthing off, so he stayed in the bar and played a couple of games of pool with his friend. After an hour or so, though, the man did return to the bar – and he had brought several more men with him. They confronted our client and his friend, and a physical fight quickly developed between the two men. It escalated quickly, but ended when the alleged victim ended up out cold on the floor of the bar with a blow to the head.
The police arrested our client, based on several witnesses saying that they had seen him hit the victim in the head with a barstool. The medical evidence showed that the victim suffered a fractured skull, in several places, and a severe concussion. Not only had the blow with the barstool caused an injury, but he had also hit his head quite heavily on the floor when he fell down. In hospital, he had needed a medical procedure to reduce some swelling of his brain, and some plastic surgery for the injury to the side of his head. Given the serious injuries, and the fact that the incident had received some media attention, the DA was under pressure to file charges and secure a conviction.
Despite our best efforts, the DA was unwilling to negotiate the case at all, nor to accept any evidence that we proffered to prove self defense. They were certain that they could prove that our client had used excessive force in defending himself. At the trial, however, we were able to present an extremely strong case on behalf of our client. For example, in cross-examination, several of the prosecution witnesses agreed with our attorney that the alleged victim had started the fight, and had produced a flick-knife, before our client had picked up the barstool. We were also able to argue, based on the CCTV footage from outside the bar, that our client and his friend were outnumbered and facing much larger men in the fight. Further, the bartender that had broken up the initial argument gave evidence that the alleged victim had been involved in altercations in the bar before that day, and was known as a violent character.
In fact, the trial was proceeding so much in the defendant’s favor, that when the Prosecutor finished presenting his case, he approached our attorney and offered a deal to a reduced charge of misdemeanor assault to our client. As required, our attorney took that proposal to our client – however, he was adamant that he was not guilty of any offense, and wanted the trial to continue. When the jury retired to consider their verdict, they took less than an hour to find our client not guilty of the charges.
The penalties in battery cases vary widely, and will always depend on the offense charged and the exact circumstances of the offense. Whether or not you have a criminal history, or a history of previous violence offenses, will also affect the severity of the penalty imposed.
Of course, penalties are only of concern if you are actually convicted of an offense. In every case, our aim is always the complete dismissal of all charges and we will do everything possible to avoid a conviction in your case. However, in cases where a conviction cannot be avoided, Summit Defense Attorneys will fight to minimize consequences. In many battery causing serious bodily injury cases, we can do things like:
If, despite our best efforts, you are convicted of battery causing serious bodily injury, the penalties are set out below. Remember, this battery offense is a wobbler – meaning it can be charged as either a misdemeanor or a felony, depending on the circumstances of the offense, and whether you have any criminal history.
Penal Code 243(d) misdemeanor battery causing serious bodily injury
If the Prosecutor decides to charge the offense as a misdemeanor, the maximum penalties are:
Penal Code 243(d) felony battery causing serious bodily injury
If the Prosecutor charges the offense as a felony, the maximum penalties are:
Penal Code 243(d) felony battery causing great bodily injury
There is an additional penalty that can be imposed if you are charged with felony batter and the jury, or the judge, find that the battery has actually caused ‘great bodily injury’ – which is actually more severe than ‘serious bodily injury’, and is defined as “significant or substantial physical injury”.
If you are found to have caused a great bodily injury, then you could be sentenced to an addition 3 to 6 years on top of any other sentence imposed.
This offense concerns battery that causes injury to a police officer, or other peace officer. This is always filed as a felony, and the maximum penalties include:
Keep in mind that all of these penalties are the maximum possible sentences. In every case, the judge must consider all of the relevant factors put before them before imposing a sentence. Those factors include things such as the nature of the offense itself and any criminal history, and the specific circumstances of each case. They will also look at the particular background of the offender, and if relevant, the history of the relationship between the offender and the victim. Some of the things that the judge will consider are known as aggravating and mitigating circumstances – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.
There are some common factors that can occur in battery cases – for example, if alcohol or drug use was associated with the offense, and you voluntarily enter into a treatment program, then your attorney may persuade the judge to take that into account as a mitigating circumstance. On the other hand, if the battery was committed in the context of an ongoing course of domestic violence offense committed by the defendant, then that might be considered an aggravating circumstance. However, every case is different and every defendant is unique – an experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.
Besides the possible penalties of imprisonment, fines, and probation, an aggravated battery conviction exposes a defendant to some additional, serious consequences. These include a permanent criminal record, issues with your immigration status, and being forced to give up or sell your guns. These are further reasons why the first goal of Summit Defense Attorneys, in any case, is the full dismissal of all charges.
Immigration status jeopardized
A conviction for a battery offense – as a violent offense – can have particularly serious consequences for non-citizens, including the threat of deportation. We know that a conviction can have tragic consequences – jobs can be lost, families can be broken up, and people lose their opportunity to remain in the US.
If you are a non-citizen, on a visa, or hoping to apply for a Green Card, then you should call Summit Defense Attorneys – we are the only criminal defense firm in the Bay Area with a specialized immigration attorney on our team, which means we are able to provide our non-citizen clients with representation that takes into account all of their needs.
Give up or sell your guns
In California, any felony battery conviction, will result in some form of ban on gun ownership under the Penal Code. Further, even some misdemeanor convictions will trigger a ban under other State and Federal laws. This may require you to sell your guns and provide proof of that sale to the police, or hand your guns over to the police to keep until the order ends. In many cases, you will not be allowed to own a gun ever again.
Because both Federal and state laws apply, this can be a complex area of the law – but, where Federal and California laws conflict, the Federal law must be followed. Further, the courts have held that these bans do not violate the Second Amendment right to bear arms. If you are concerned about the preservation of your gun ownership rights, you should consult an attorney as soon as you are accused of any kind of criminal offense – especially accusations involving violence, or the use of firearms.
 Judicial Council of California Criminal Jury Instructions, Instruction 945.
 Judicial Council of California Criminal Jury Instructions, Instruction 925.
 Judicial Council of California Criminal Jury Instructions, Instruction 240.
 Judicial Council of California Criminal Jury Instructions, Instruction 3470.
 People v. Taylor (2004) 118 Cal.App.4th 11.
 California Penal Code, Section 12022.7.