Last Updated on July 2, 2025
There are many reasons that people mistakenly believe the terms assault and battery can be used interchangeably. For one thing, police procedurals often lump the two together when detectives speak with one another. But more realistically, it’s because some states lump the two acts together. In California, however, the two crimes are very distinct. When it comes to assault versus battery, the difference is that assault involves a threat or an attempt to use violence, but battery involves the use of actual force.
What is the Difference Between Assault and Battery?
Many people don’t recognize how assault and battery differ. The confusion largely comes down to the fact that people commonly use the word assault when discussing a violent act, meaning they are actually talking about battery. Alternatively, some states do file assault and battery as one single charge. However, there is a distinct difference between the two in most states, including California.
The Meaning of Assault
The most basic definition of assault under the law is the threat or attempt to injure someone illegally, paired with the ability to do so. For example, if a person approaches a drunk individual at a bar and threatens to punch him, that is assault. If the attacker throws a punch but misses, it would be considered aggravated assault because he attempted to harm someone illegally. If he brandishes a knife to make his threat more intimidating, that would be assault with a deadly weapon, another form of aggravated assault. Threatening to stab someone could be considered assault, but it may also be the more serious offense of making a criminal threat.
The Definition of Battery
Whereas assault does not involve physical contact, battery involves the actual use of force or violence. In other words, punching or kicking someone is battery, but threatening or attempting and failing to do so would be assault. If someone threatens their intended victim before throwing a punch, they could be charged with assault and battery. However, unlike what you see on TV, they would face two separate criminal charges.
Occasionally, battery can be charged when someone does something that could potentially harm someone else, even if it wasn’t a directly violent act. For example, spitting in someone’s food is battery because it could still cause them physical harm.
Potential Penalties for Assault vs. Battery
Another significant distinction between these offenses is the potential sentences. When the charges are considered “simple,” both offenses carry a maximum six-month jail sentence, but it’s far more likely for those facing battery charges to face longer jail or prison times.
Assault Sentencing
While simple assault is a misdemeanor punishable by up to six months in jail, there are many ways it can be a more serious charge. For example, if the victim is a police officer, firefighter, paramedic, or other protected class, the crime is punishable by up to one year. Aggravated assault can be charged as a misdemeanor or felony and is punishable by up to four years in prison when charged as a felony.
Battery Sentencing
Battery can be charged as a misdemeanor or a felony, depending on the severity of the victim’s injuries. Simple battery is filed when the victim does not suffer injuries. These offenses are misdemeanors, punishable by up to six months in jail.
When the injuries are more serious, the crime is a wobbler, meaning the penalty can be a misdemeanor or a felony. As a misdemeanor, it is punishable by up to one year in jail. As a felony, it is punishable by up to four years in prison, and the crime will also leave a strike on your record.
Battery on a peace officer can result in one additional year being added to misdemeanor charges and another three years if the charge was filed as a felony. Additionally, when the victim suffers serious injuries, another three years can be added to an offender’s prison sentence.
Because the decision of how to file these charges is mainly up to the District Attorney, your lawyer may be able to minimize the charges in some cases.
Fighting Assault and Battery Charges in California
Because police in these cases often act based on the testimony of witnesses, you could be charged with battery even if you did not actually make physical contact with anyone. Alternatively, you can be accused of assault when the other party is the one who made the threats. Because it’s common for those facing assault or battery charges to be wrongly accused by witnesses, those accused of these charges should always work with a skilled violent crimes lawyer. Your attorney can help show your side of the story is accurate or, at the very least, that there is not enough evidence to prove you broke the law.
It is also possible to argue that you were acting in self-defense. To use this defense, you must prove that you only acted when in a situation where a reasonable person would have feared they were at risk of imminent danger of immediate bodily harm.
Another defense can involve arguing that you lacked intent. For example, if you were trying to hit a punching bag and accidentally struck someone else, this would not be battery since you did not intentionally strike the other person. Always speak with a criminal defense attorney before attempting to defend yourself, or you might say something that could later be used against you in court.
If you have any questions about these charges or have been accused of either crime, Vista lawyer Peter M. Liss can help. Call (760) 643-4050 today to schedule a free consultation.
