Serving Sonoma, Napa, Lake, Mendocino, Humboldt and Marin Counties
Assault is an unlawful attempt coupled with a present ability to commit an injury to another person. Battery is any willful, unlawful use of force or violence on another. An assault can be characterized as an attempt to commit a battery and can actually occur without the battery; every battery, however, includes an assault. In California, there is no such offense known as an attempt to assault. Also, strictly speaking, battery does not have to be violent; the force does not need to cause bodily harm or even leave a mark.
Resisting Arrest: California Penal Code Section 148
Assault: California Penal Code Section 240
Battery: California Penal Code Section 242
Battery on a Peace Officer: California Penal Code Section 243(b) and 243 (c)(2)
Battery with Serious Bodily Injury: California Penal Code Section 243(d)
Domestic Violence - Domestic Battery: California Penal Code Section 245(a)(1)
Assault with a Deadly Weapon: California Penal Code Section 245(a)(1)
Assault with a Firearm: California Penal Code Section 245(a)(2)
Child Neglect: California Penal Code Section 270
What California Law Says About Assault & Battery
There are many statutes created by the California Legislature that deal with different types of assault and battery.
Basically, assaults and batteries are classified by:
- Specific means such as assaults with chemicals or drugs;
- Specific people such as assaults by convicts;
- Where they take place such as assaults on school grounds;
- The victims that are affected such as a spouse or fellow parent; and
- Specific laws designed to prevent violence against public safety providers such as police officers, school security officers, firemen, jail personnel, EMTs, or lifeguards.
Types of Assault Charges We Defend
Ronald Dinan & Associates helps with the following assault-related charges:
- Spousal Assault
- Domestic Violence
- Sexual Assault
- Violation of Probation
- Resisting Arrest
- Child Abuse
Domestic Violence Information
The most common assault and battery charges involve domestic violence.
Domestic violence battery can be committed against the following:
- Spouse, former spouse, or fiancée
- Person with whom the defendant is cohabitating
- Person who is the parent of the defendant's child
- Person who whom the defendant currently is, or was, dating or engaged to
This can be charged as a misdemeanor or as a felony, depending on the circumstances.
California Assault FAQs
If my lawyer's representation was bad, can I get a new trial?
A new trial will only be granted when either the trial court or an appeals court decides that you received the ineffective assistance of counsel from his lawyer. To win this argument, you must show that your lawyer's representation fell short (1) when measured against a reasonably competent lawyer and (2) when the poor performance resulted in prejudice (seriously contributed to his conviction). This prejudice must be so significant that the adversarial process of the trial could not be relied upon for producing a fair result.
When making this decision, courts are reluctant to second guess the tactical decisions made by a trial lawyer. The final question is whether or not the decisions that were made by the lawyer were so bad—considering all of the surrounding circumstances of the trial—that the trial did not produce a fair fight or just result. A trial is an adversarial process by nature and if one side's representation is so poor that it wasn't a fair fight, a new trial can be granted. You should contact an attorney who handles criminal appeals to determine whether your right to a competent attorney and a fair trial has been violated.
Can a piece of wood with a sharp end qualify as a 'deadly weapon'?
Most likely. Certain items such as firearms have been held by the courts to be deadly weapons as a matter of law. Other objects, while not deadly in everyday use, may be used under certain circumstances in a manner that is likely to produce death or great bodily injury; as such, they can be considered to be deadly weapons.
Factors that are considered to determine whether an object is inherently dangerous include:
- The nature of the object
- The manner in which it is used in all of the surrounding circumstances of its use
In various cases, courts have considered deadly weapons to include:
- Ice Picks
- Three-Pronged Forks
- Bow & Arrow
In a recent southern California case, the Court of Appeals upheld a defendant's conviction for assault with a deadly weapon when his female accomplice, either before or after the robbery, held the victim's sharp pencil up to his neck and threatened him.
Have more questions? Contact us now to speak to an experienced California assault lawyer!
Defenses to Assault & Battery Charges in California
Defenses to an assault or battery charge in California are many and varied and, generally, depending upon the circumstances that existed at the time of the incident.
Some examples of legal defenses to an assault and/or battery charge:
- Involuntary intoxication, where someone's drink is spiked with alcohol or drugs.
- Automatism or unconsciousness may also be a defense. Some lawyers have recently been arguing this the state of mind that people may suffer by using Ambien.
- Ignorance of the law is not a defense nor is, generally, a mistake of law. However, a mistake of fact can be a defense if it negates or cancels criminal intent or knowledge.
- Self-defense may also be a justification for acts that would otherwise be considered criminal. Generally, for a successful self-defense argument, there must be an apparent necessity for the action, the force must be reasonable under the prevailing circumstances, and the threatened act against someone must be unlawful. Generally, there is no required need to retreat and an individual may stand their ground.
- A defense to an assault may also arise in circumstances of defending property (such as a home), an attempt to prevent and preserve the peace or the apprehension of a criminal.
Regarding domestic violence charges, defenses include denial of the alleged violence, self-defense, and, characterization of any violence as either accidental (as opposed to intentional) or as necessary to get away from someone who is using or threatening violence.
Our practice concentrates in the counties of Sonoma, Napa, Marin, Lake, Mendocino, and Humboldt.
Charged in an assault case? Your best decision is to contact a skilled defense lawyer. Call us today!