Assault and Battery

PC 240

PC 242

PC245

Elements

No contact required

People v. Nguyen (2017) 12 Cal.App.4th 44

People v. Filcher (1959) 169 Cal.App.2d 651

People v. Chance (2008) 44 Cal.4th 1164

Simple Assault and Simple Battery

While an attempt requires more than mere preparation, an assault requires a greater proximity to the underlying offense of battery. An act done toward the commission of the battery must precede the battery immediately, while an act constituting an attempt to commit an offense may be more remote. (People v. Colantuono (1994) 7 C.4th 206, 216, 26 C.R.2d 908, 865 P.2d 704, infra, § 42; on attempt generally, see 1 Cal. Crim. Law (4th), Elements, § 56 et seq.) Thus, mere insulting words, preparation, or threats of future injury, not coupled with an offer of present violence, do not constitute assaults. (See People v. Dodel (1888) 77 C. 293, 294, 19 P. 484 [defendant in saloon drew knife, but was not near enough to strike victim and backed away from him]; People v. Diamond (1939) 33 C.A.2d 518, 521, 92 P.2d 486 [defendant pulled gun, pointed it at ground, swung it around his head, and said, “Don't come any closer, your life is in danger”]; for special crimes involving obscene or insulting words, see 2 Cal. Crim. Law (4th), Sex Offenses and Crimes Against Decency, § 132; 2 Cal. Crim. Law (4th), Crimes Against Public Peace and Welfare, § 3.) But menacing a person with a loaded gun and chasing the person with a raised weapon are assaults. (See People v. Yslas (1865) 27 C. 630, 633 [hatchet; felonious assault]; People v. Thompson (1949) 93 C.A.2d 780, 782, 209 P.2d 819 [gun; felonious assault].) “In order to constitute an assault there must be something more than mere menace. There must be violence begun to be executed. But where there is a clear intent to commit violence accompanied by acts which if not interrupted will be followed by personal injury, the violence is commenced and the assault is complete. … It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self defense or retreat, the assault is complete.” (People v. Yslas, supra, 27 C. 633.) An assault occurs when “ ‘[t]he next movement would, at least to all appearance, complete the battery.’ ” (People v. Raviart (2001) 93 C.A.4th 258, 266, 112 C.R.2d 850, infra, § 9, quoting People v. Williams (2001) 26 C.4th 779, 111 C.R.2d 114, 29 P.3d 197, infra, § 44.) This does not mean that to commit an assault the defendant must do everything physically possible, short of inflicting the actual injury on the victim, to commit a battery. To the contrary, numerous precedents state that an assault may be committed by “[h]olding up a fist in a menacing manner, drawing a sword, or bayonet, [or] presenting a gun at a person who is within its range.” (93 C.A.4th 266, 267; quoting People v. McMakin (1857) 8 C. 547, 548, infra, § 45.) Hence, assault does not require that an injury would result as the very next step in the sequence of events or without delay. (People v. Chance (2008) 44 C.4th 1164, 1172, 81 C.R.3d 723, 189 P.3d 971, infra, § 9.)

From Witkins Criminal Law Crimes Assault.

“Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault...." (People v. Raviart (2001) 93 Cal.App.4th 258, 263, quoting People v. McMakin (1857) 8 Cal. 547.)

Aggravated Assault

PC245(a)(1)

Weapons

Pillow

People v. Helms (1966) 244 Cal.App.2d 476

Chain

People v. Montes (1999) 74 Cal.App.4th 1050

Breaking glass

People v. White (2015) 241 Cal.App.4th 881

Rock

People v. White (1963) 212 Cal.App.2d 464

NOT deadly weapon

Butterknife

In re B.M. (2018) 6 Cal.4th 528

Overruling people v. Koback

Enhancement

PC12022(b) cannot be attached to PC245(a)(1) because weapon is element. (People v. Summersville (1995) 34 Cal.App.4th 1062; People v. Mcgee (1993) 15 Cal.App.4th 107, 110.)

PC245(b)

People v. Yslas (1865) 27 Cal. 360

People v. Colantuono (1994) 7 Cal.4th 206

People v. Colantuono (1994) 7 C.4th 206, 26 C.R.2d 908, 865 P.2d 704, infra, § 42, a case involving an assault with a deadly weapon, states that, despite “a certain measure of understandable analytical uncertainty” on the issue, assault is a general intent crime. (7 C.4th 215.) The evidence need only demonstrate that the defendant wilfully or purposefully attempted a wrongful act committed by means of physical force against the person of another. (7 C.4th 215.) While assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur, it does require an intentional act and knowledge of facts sufficient to lead a reasonable person to realize that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 C.4th 779, 787, 111 C.R.2d 114, 29 P.3d 197, infra, § 44 [clarifying Colantuono].)

Lesser-included offenses

(People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.)

Where the assault is committed with a deadly weapon, or with force likely to produce great bodily injury, the aggravated assault is complete upon the attempted use of the force. If halted at this point, no battery has been committed. Since assault with force likely to produce great bodily injury may be committed without committing battery, battery is not an offense necessarily included within assault by means of force likely to produce great bodily injury. The conclusion just reached is not only compelled by logic, it is supported by the overwhelming weight of authority (e.g., People v. Fuller, 53 Cal.App.3d 417, 422, 125 Cal.Rptr. 837; People v. Lathus, 35 Cal.App.3d 466, 471, 110 Cal.Rptr. 921; People v. Rupert, 20 Cal.App.3d 961, 967, fn. 1, 98 Cal.Rptr. 203; People v. Samuels, 250 Cal.App.2d 501, 515, 58 Cal.Rptr. 439; People v. Muir, 244 Cal.App.2d 598, 603 fn. 4, 53 Cal.Rptr. 398; People v. Mueller, 147 Cal.App.2d 233, 238, 305 P.2d 178; People v. McCaffrey, 118 Cal.App.2d 611, 619, 258 P.2d 557), including a direct holding by our Supreme Court (People v. Helbing, 61 Cal. 620, 621—622). (People v. Yeats (1977) 66 Cal.App.3d 874, 878-879.)

"Battery is not an included offense in the crime of assault with a deadly weapon . . . ." (People v. Fuller (1975) 53 Cal.App.3d 417, 422.)

"Because a battery is not essential to the crime here charged and because one may violate section 245 without actually striking another, a battery is not a ‘necessarily’ included offense in the crime defined by section 245." (People v. Mueller (1956) 147 Cal.App.2d 233, 238.)