Assault & Battery | The Hong Firm

I’m charged with assault. Am I going to be convicted? What is my defense?

The first place to look when charged with a crime is the California Jury Instructions, or CALCRIM. These jury instructions are what judges and juries use to decide whether or not to vote guilty or not guilty at trial. Although the vast majority of cases settle or resolve with a negotiated plea bargain, it is extremely important to know what the prosecutor must prove at trial in order to know precisely how to defend against these charges long before trial begins.

CALCRIM 915 States:

Simple Assault

The defendant is charged [in Count ______] with assault.
To prove that the defendant is guilty of this crime, the People must prove that:

The defendant did an act that by its nature would directly and probably result in the application of force to a person;
The defendant did that act willfully;
When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/ her) act by its nature would directly and probably result in the application of force to someone;

[AND]

When the defendant acted, (he/she) had the present ability to apply force to a person(;/.)

<Give element 5 when instructing on self-defense or defense of another>

[AND

The defendant did not act (in self-defense/ [or] in defense of someone else).]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]

[The People are not required to prove that the defendant actually touched someone.]

The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.

No one needs to actually have been injured by the defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was].

[Voluntary intoxication is not a defense to assault.]

Whether or not you will be convicted of these charges largely depends on mounting a strong defense. We at The Hong Firm are committed to building a fierce defense for you – always in anticipation of trial.

If you are facing assault charges or any related charges, call The Hong Firm immediately for a free consultation.

CALCRIM 875 states:

875. Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury

The defendant is charged [in Count ______] with assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle).

To prove that the defendant is guilty of this crime, the People must prove that:

<Alternative 1A—force with weapon>

[1. The defendant did an act with (a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) that by its nature would directly and probably result in the application of force to a person;]

<Alternative 1B—force without weapon>

[1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and

1B. The force used was likely to produce great bodily injury;]

The defendant did that act willfully;
When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/ her) act by its nature would directly and probably result in the application of force to someone;

[AND]

When the defendant acted, (he/she) had the present ability to apply force (likely to produce great bodily injury/with a deadly weapon/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle) to a person(;/.)

<Give element 5 when instructing on self-defense or defense of another>

[AND

The defendant did not act (in self-defense/ [or] in defense of someone else).]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.]

[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]

[The People are not required to prove that the defendant actually touched someone.]

The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.

No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was].

[Voluntary intoxication is not a defense to assault.]

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

[A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]

[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]

[A machine gun is any weapon that (shoots/is designed to shoot/ [or] can readily be restored to shoot) automatically more than one shot by a single function of the trigger and without manual reloading.]

[An assault weapon includes <insert names of appropriate designated assault weapons listed in Pen. Code, §§ 12276 and 12276.1>.]

[A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge [and that is not an assault weapon or a machine gun]. A .50 BMG cartridge is a cartridge that is designed and intended to be fired from a center fire rifle and that has all three of the following characteristics:

The overall length is 5.54 inches from the base of the cartridge to the tip of the bullet;
The bullet diameter for the cartridge is from. 510 to, and including, .511 inch;

AND

The case base diameter for the cartridge is from .800 inch to, and including, .804 inch.]

[The term[s] (great bodily injury[,]/ deadly weapon[,]/ firearm[,]/ machine gun[,]/assault weapon[,]/ [and] .50 BMG rifle) (is/are) defined in another instruction to which you should refer.]

Battery

I’m charged with battery. Am I going to be convicted? What is my defense?

CALCRIM 960 states:

960. Simple Battery

The defendant is charged with battery.

To prove that the defendant is guilty of this crime, the People must prove that:

The defendant willfully [and unlawfully] touched<insert name>in a harmful or offensive manner(;/.)

<Give element 2 when instructing on self-defense, defense of another, or reasonable discipline.>

[AND]

The defendant did not act (in self-defense/ [or] in defense of someone else/ [or] while reasonably disciplining a child).

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]

[It is no defense to this crime that the defendant was responding to a provocative act that was not a threat or an attempt to inflict physical injury.] [Words alone, no matter how offensive or exasperating, are not an excuse for this crime.]

Domestic Violence
I’m charged with domestic violence. Am I going to be convicted? What is my defense?

CALCRIM 841 states:

841. Simple Battery: Against Spouse, Cohabitant, or Fellow Parent

The defendant is charged [in Count ______] with battery against [his/her] ([former] spouse/[former] cohabitant/fiancé[e]/a person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/the (mother/father) of (his/ her) child).

To prove that the defendant is guilty of this crime, the People must prove that:

The defendant willfully [and unlawfully] touched<insert name of complaining witness>in a harmful or offensive manner;

[AND]

<insert name of complaining witness>is (the/a) (defendant’s [former] spouse/defendant’s [former] cohabitant/defendant’s fiancé[e]/person with whom the defendant currently has, or previously had, a (dating/ [or] engagement) relationship/(mother/father) of the defendant’s child)(;/.)

<Give element 3 when instructing on self-defense or defense of another.>

[AND]

The defendant did not act (in self-defense/ [or] in defense of someone else).

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]

[The term cohabitants means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as (husband and wife/ domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.]

[A person may cohabit simultaneously with two or more people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods.]

[The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.]

[A person is considered to be the (mother/father) of another person’s child if the alleged male parent is presumed under the law to be the natural father. <insert name of presumed father> is presumed under law to be the natural father of <insert name of child>.]

CALCRIM 840 states:

Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition

The defendant is charged [in Count ______] with inflicting an injury on [his/her] ([former] spouse/[former] cohabitant/the (mother/father) of (his/her) child) that resulted in a traumatic condition.

To prove that the defendant is guilty of this crime, the People must prove that:

The defendant willfully [and unlawfully] inflicted a physical injury on [his/her] ([former] spouse/[former] cohabitant/the (mother/father) of (his/her) child);

[AND]

The injury inflicted by the defendant resulted in a traumatic condition.

<Give element 3 when instructing on self-defense or defense of another>

[AND

The defendant did not act (in self-defense/ [or] in defense of someone else).]

Someone commits an act willfully when he or she does it willingly or on purpose.

A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.

[A person is considered to be the (mother/father) of another person’s child if the alleged male parent is presumed under law to be the natural father. <insert name of presumed father> is presumed under law to be the natural father of <insert name of child>.]

[A traumatic condition is the result of an injury if:

The traumatic condition was the natural and probable consequence of the injury;
The injury was a direct and substantial factor in causing the condition;

AND

The condition would not have happened without the injury.

A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that resulted in the traumatic condition.]