Posted on June 15, 2015
Los Angeles Assault and Battery Defense Attorney
Both assault and or battery charges can carry severe penalties if convicted. The punishment will depend on the level of injuries the victim suffers as a result or measuring the surrounding circumstances. If the use of a weapon was involved, one can expect even greater custody exposure. However, there are a number of defenses available to defending assault and/or battery charges. The most common defense is self-defense where someone was merely protecting themselves or third party from bodily injury. Situations involving assault charges or battery charges frequently occur in bar establishments, domestic disputes among roommates, and road rage incidences. Assault and battery charges may also follow when associated with other crimes. For example, if one commits a robbery with the use of a weapon to effectuate the taking of an item from someone, then the prosecutor may elect to charge someone with assault and brandishing a weapon in addition to the robbery itself. Furthermore, some assault and/or battery charges can be wobbler offenses which means that the prosecutor holds discretion on whether to charge someone with a felony or misdemeanor. Factors the prosecutor considers is your prior criminal record, severity of the circumstances, as well as whether a weapon was involved. Fortunately, a felony conviction of a wobbler offense may be reduced to a misdemeanor later on after completing probation.
Assault and battery charges must be treated delicately requiring a substantial factual and investigative analysis of the circumstances. Most times, witnesses have a tendency to see “different things” which may support a suspect or defendants position in court. If you have been arrested or charged with assault or battery, contact attorney John Rogers right away. The best approach to defeating assault or battery charges is early intervention by a Los Angeles Criminal Defense Attorney. Mr. Rogers may be able to get the case rejected completely from ever being filed against you by contacting the prosecuting attorney at the cases early stages. Mr. Rogers has experience handling all types of violent offenses and knows the defenses to argue on your behalf in an effort to dismiss the case or substantially reduce the charges.
Los Angeles Defense Investigation
When accused of committing assault or battery, nothing less than a full defense investigation should be conducted on your behalf. Most instances have individual witnesses who record the incident on their mobile devises and adjacent businesses or complexes have surveillance video cameras that may have captured the incident. Due to pertinent evidence being deleted, re-recorded, or destroyed, those individuals must be contacted right away in effort to preserve this evidence. Additionally, all witnesses to the incident must be contacted by a defense investigator to obtain information that the police likely missed or perhaps exaggerated. Furthermore, an overview of your background is necessary to demonstrate that it’s out of your character to initiate the confrontation unless you were acting self-defense or defending someone else from harm. The Law Offices of John D. Rogers has access to a number of defense private investigators that will conduct a full investigation on all witnesses such as running background checks and speaking with them in person to gain statements for your defense.
Early Defense Intervention
Domestic disputes, assault and/or battery charges may be a misunderstanding or perhaps the police officers are exaggerating the circumstances. Retaining a skilled Los Angeles Criminal Defense Attorney at the earliest juncture of the case could help in getting the case rejected completely and avoid ever having to go to court. When an incident occurs, the police officers writes up a report which is forwarded to the Los Angeles County District Attorney’s Office or Los Angeles City Attorney’s Office for review to determine whether formal criminal charges should be brought against you. A prosecutor will look at the evidence very narrowly only considering what the police officers have to say and their opinion. When retaining the Law Offices of John D. Rogers, Mr. Rogers contacts the filing prosecutor and submits a package containing mitigating evidence, exculpatory evidence, additional witness statements, and character letters on your behalf in an effort for the prosecutor to consider all the evidence in the case prior to making a decision to file charges. Therefore, if you have been arrested or accused of a crime, contact John Rogers immediately.
Pertinent Evidence to Gather
• Phone logs, text messages, facebook message from the alleged victim
• Video surveillance from local businesses or neighbors
• Statements from witnesses who observed the incident
• All background information on the alleged victim – i.e., background check
• Your personal good character from friends and family members
• Mobile video/audio recordings from pertinent witnesses
• Public member complaints of the police officers involved with the investigation
Assault: Defined by California Statute
In California, assault is formally defined under Penal Code § 240 which provides, “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
Assault: Elements of the Crime
According to CALCRIM 915, in order for someone to be found guilty of simple assault pursuant to P.C. § 240, the prosecutor must prove each element beyond a reasonable doubt:
1. Defendant did an act by its nature would directly and probably result in the application of force to the person of another;
2. Defendant acted willfully;
3. Defendant was aware that his or her act would reasonably and probably result in the application of force to another;
4. Defendant had the present ability to apply force to another;
5. Defendant was not acting in self-defense.
Contrary to popular belief, assault does not require any touching, but rather an intent to commit an unlawful touching. Additionally, assault can be carried out via instrumentality such as rocks, knives, etc. Furthermore, assault does not require the alleged victim to suffer any harm or damages as a result.
The punishment for an assault conviction generally depends on the circumstances and whether the use of a weapon was involved or whether the assault was committed upon a police officer. Simple assault is a misdemeanor offense and if convicted under P.C. § 240 one faces:
• 3 years of probation
• Up to a $1,000 fine
• Up to 6 months in the County Jail
• Counseling / Anger Management Classes
• Restitution to the Victim
Assault: Legal Defenses
• You were implicated for the crime of assault based on mistaken identity
• You were acting in self-defense or the defense of another to prevent bodily injury
• The alleged victim has falsified or exaggerated the circumstances
• Your actions were accidental versus intentional or willful
• You did not reasonably believe your conduct would result in an assault
If you have been convicted of assault, then you may be eligible to expunge your record pursuant to P.C. § 1203.4. In that instance, the court withdraws its finding of guilt, enters a not guilty plea, and the case is dismissed thereafter. In that event, you will be judicially declared to be statutorily rehabilitated and you may truthfully in most circumstances answer “no” you have not been convicted of a crime. Expunging your record requires certain requirements to be fulfilled before submitting your petition to the court. If you have been convicted of assault and you are seeking to expunge your record, contact Mr. Rogers today for a free confidential consultation concerning you eligibility.
Dan was at a local bar in Los Angeles with some friends celebrating a recent career promotion. When Dan was ordering a drink at the bar he was bumped into by another bar patron. The patron then yelled “Watch where I’m going.” Dan replied, “You bumped into me.” The patron grew upset and threw a punch at Dan. Dan was quick to dodge the punch. In this case, the patron would be charged with assault although he never made physical contact with Dan after throwing the punch. Assault requires the present ability to apply unlawful force. The patron had the present ability to apply force because he was nearly able to punch Dan. And the unlawful force would have been the patron’s fist coming into contact with Dan’s body. Thus, the patron would likely be found guilty of simple assault.
Betty was a student attending a local college in Los Angeles. Because finals were approaching, Betty was studying in the library. Betty became very anxious because she was not understanding important material pertinent to her upcoming final exam. When she missed a question, she grew upset and punched the bookshelf. Her punching the bookshelf caused the shelf to shake and yards away caused a book to fall nearly striking another student across the table. The student reports the incident to the police and Betty is subsequently arrested for assault. In this case, Betty would not be guilty of assault because it’s arguably not reasonable or probable to assume that by punching the bookshelf as she did would cause a book across the way to fall and nearly strike another student. Furthermore, Betty arguably did not harbor the requisite intent to bring about force to the person of another.
Battery: Defined by Statute
In California, battery is formally defined under Penal Code § 242 which provides, “A battery is the willful and unlawful use of force or violence upon the person of another.”
According to CALCRIM 960, in order for someone to be found guilty of battery, the prosecutor must prove each element beyond a reasonable doubt:
1. Defendant willfully and unlawfully touched another in a harmful or offensive manner
2. Defendant was not acting in self-defense
CALCRIM 960 further provides that “someone commits an act willfully when he or she does it willingly or on purpose.” Harmful or offensive touching can be the slightest touching and does not require bodily injury as a result. Harmful or offensive touching is measured on an objective standard and not subjectively on the individual person. In other words, would a reasonable person be offended by the defendant’s act of touching?
The punishment for battery depends greatly on the level of injury the alleged victim received. Additionally, the penalties if convicted depend on the type of battery conviction. If one is convicted of simple battery under P.C. § 242, the consequences are:
• Up to 6 months in the county jail
• A fine up to $2,000
• 3 years of probation
• Anger management / counseling classes
• Restitution to the victim
Battery: Legal Defenses
• You were wrongfully implicated based on mistaken identity
• You did not harbor the requisite willful intent to commit a harmful touching
• The harmful touching is not considered objectively offensive
• You were reasonably acting in self-defense or in the defense of another
• You did not reasonably believe your conduct would cause a battery
• You were reasonably acting within your parental rights in scolding your child
• The alleged victim is fabricating or exaggerating the circumstances
Battery convictions are eligible for expungement pursuant to California P.C. § 1203.4 if certain conditions are met. For instance, if you were incarcerated in state prison as a result of your battery conviction then you are ineligible to expunge your record. Expunging a violent offense can have huge benefits especially within the private employment sector. If your conviction has been expunged then you can truthfully answer “no” you have not been convicted of a crime. For more information, contact the Law Offices of John D. Rogers for a consultation concerning your eligible to expunge your battery conviction.
Dan was riding the bus heading toward downtown Los Angeles for the evening to meet up with some friends. On this particular evening, the bus was crowded with college students who had just finished class heading home for the evening. Dan was standing next to Sally since due to the buses overcrowding there were no places to sit. When the bus took a sharp turn, Dan accident fell towards Sally pushing her to her side. Sally became offended and called the police to report the crime against Dan. The police arrive and arrest Dan for battery. In this case, Dan would not be guilty of battery against Sally because Dan did not harbor the willful intent to commit a battery. Furthermore, the touching of Sally would unlikely be considered objective offensive since it’s a common and accepted fact that public transportation is bound to have a number of passengers in which Sally assumed the risk.
Dan was in a bar with someone of his friends celebrating his recent graduation from a local Los Angeles college. Dan had been drinking with his friends when he was suddenly bumped into by another bar patron. Dan informed the patron that he should excuse himself when he bumps into people. The patron became upset and approached Dan in an assaultive manner. The patron then swung a punch towards Dan’s face. Dan was able to dodge the punch and in response Dan punched the patron in the face knocking him down. The bar employees called the police and Dan was arrested for battery against the patron. In this case, Dan has a viable defense to the battery charge since he was acting in self-defense to prevent himself from receiving bodily injury if the patron had tried to punch Dan against after initially missing.
Contact Us for a Free Consultation
If you have been arrested or charged with assault or battery, contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call (949) 625-4487 for a free confidential consultation concerning your rights and defenses