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Criminal defense
Long Beach Assault and Battery Defense Lawyer
Assault and battery are two different crimes, and most people are charged with one when they expected the other. The difference decides whether the case is a misdemeanor, a felony, or a strike. Call now to schedule a consultation.
Patrick S. AguirreCriminal defense attorney · Long Beach4.6 out of 5 from 41 Google reviews. 25+ years of experience Patrick handles your case personally
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The charge
Assault and battery are not the same offense
Penal Code 240 defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on another person. Nobody has to be touched and nobody has to be hurt. Penal Code 242 defines battery as any willful and unlawful use of force or violence on another person. Any offensive touching qualifies, and no injury is required there either. A shove is a battery. A swing that misses is an assault.
In their simple forms both are misdemeanors. Assault carries up to six months in county jail and a fine up to $1,000 under Penal Code 241(a). Battery carries up to six months and a fine up to $2,000 under Penal Code 243(a). Most cases that begin as a bar fight or a family argument start here, and the whole question is whether the prosecution can keep them here.
Sources: Penal Code 240 — assault defined; Penal Code 242 — battery defined; Penal Code 241(a) — assault penalties; Penal Code 243(a) — battery penalties.
The escalation
What turns a misdemeanor into a felony
Two things escalate a case: injury and weapons. Under Penal Code 243(d), a battery that inflicts serious bodily injury is a wobbler, punishable as a misdemeanor with up to a year in county jail or as a felony with two, three, or four years. Under Penal Code 245(a)(1), assault with a deadly weapon other than a firearm is a wobbler carrying two, three, or four years as a felony, and Penal Code 245(a)(4) does the same for an assault by means of force likely to produce great bodily injury, which requires no weapon at all. A fist can satisfy it.
The strike question follows from those facts rather than from the code section. A felony in which the defendant personally inflicted great bodily injury on someone other than an accomplice is a serious felony under Penal Code 1192.7(c)(8), and a felony in which the defendant personally used a dangerous or deadly weapon is one under Penal Code 1192.7(c)(23). A separate enhancement, Penal Code 12022.7(a), adds three consecutive years for personally inflicting great bodily injury during a felony. This is why the injury allegations are worth fighting even when the underlying incident is not seriously disputed.
Sources: Penal Code 243(d) — battery with serious bodily injury; Penal Code 245(a)(1), (a)(4) — assault with a deadly weapon, or by force likely to produce great bodily injury; Penal Code 12022.7(a) — the great-bodily-injury enhancement; Penal Code 1192.7(c)(8), (c)(23) — when these become strikes.
Special victims
Who the alleged victim was changes the charge
Penal Code 243(b) and (c) raise the penalty for battery on a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, code enforcement or animal control officer, or a doctor or nurse providing emergency care, where the defendant knew or reasonably should have known who they were. That knowledge element is a real defense in a chaotic scene involving plain-clothes officers.
Where the person is a spouse, cohabitant, co-parent, fiancé or dating partner, the charge becomes domestic battery under Penal Code 243(e)(1), which carries its own consequences including a protective order, a batterer’s intervention programme of at least a year under Penal Code 1203.097, and firearm prohibitions. Where the person is 65 or older or a dependent adult, Penal Code 368 applies. Those cases are handled differently and are covered on the domestic violence and elder abuse pages.
Sources: Penal Code 243(b)–(c) — peace officers, firefighters, emergency and health care workers; Penal Code 243(e)(1) — domestic battery; Penal Code 368 — elder and dependent adult abuse.
The defense
How these cases are actually defended
Self-defense and defense of others is the most common and most often successful answer. California permits a person who reasonably believes they are in imminent danger of being touched unlawfully or injured to use force reasonably necessary to stop it, and the prosecution has to disprove it beyond a reasonable doubt once it is properly raised. Mutual combat, a first aggressor who withdrew, and a threat that had already ended are all distinct scenarios with different answers.
Beyond that: the touching was accidental rather than willful, which defeats battery; there was no present ability to inflict injury, which defeats assault; the force was not likely to produce great bodily injury, which drops a 245 to a simple battery; the injury was not serious or not caused by the defendant; the identification is wrong; or the account is false or exaggerated, which is common where the parties have a history, a custody dispute, or a civil claim.
Where the facts are bad, the work moves to containment: reducing a felony to a misdemeanor under Penal Code 17(b), removing the great-bodily-injury and weapon allegations that create the strike, and resolving the case in a way that protects immigration status, firearm rights, and employment.
Afterwards
What a conviction leaves behind, and what can be cleaned up
A conviction for a violent offense is weighed heavily by employers, landlords, and licensing boards, and for a non-citizen an assault or battery conviction can be a crime involving moral turpitude or a crime of violence with immigration consequences that should be assessed before any plea. A felony conviction brings a lifetime firearm prohibition under Penal Code 29800, and a domestic battery conviction carries firearm bans of its own.
A case that ends without a conviction can be sealed under Penal Code 851.91. A conviction where probation was granted and completed can be dismissed under Penal Code 1203.4, which adds a dismissal notation to the record. It does not erase the record, and no California remedy does; the difference between dismissal and erasure is set out on the expungement page.
Sources: Penal Code 1203.4 — dismissal after probation, and its limits; Penal Code 29800 — felony firearm prohibition; Penal Code 851.91 — sealing an arrest that produced no conviction.
The office
How the Law Offices of Patrick S. Aguirre defends these cases
The office has defended assault and battery cases in Long Beach and across Los Angeles County for nearly three decades. The early work is evidence that disappears: surveillance video that is overwritten in days, witnesses who were at the scene and are not in the report, injury photographs of the defendant, and medical records that show what actually happened. The allegations that carry the strike and the enhancement are treated as their own fight, separate from the underlying charge.
Nothing on this page predicts a result in any case. The firm has offices in Long Beach and Downey and speaks Spanish.
Frequently asked questions
Common questions
I never touched anyone. How can I be charged with assault?
Because assault does not require contact. Penal Code 240 requires an unlawful attempt, with the present ability, to inflict a violent injury. A swing that misses can be an assault. Contact is what makes it a battery under Penal Code 242.
The other person does not want to press charges. Will the case be dropped?
Not automatically. The decision to file and to continue belongs to the prosecutor, not to the alleged victim, and cases regularly proceed on the police report, recordings, photographs and other witnesses. What the alleged victim wants is relevant, and it is one of the things a defense lawyer can put in front of the prosecutor, but it does not end the case by itself.
Is assault or battery a strike in California?
Simple assault and simple battery are not. A felony becomes a strike when the defendant personally inflicted great bodily injury on a non-accomplice under Penal Code 1192.7(c)(8), or personally used a dangerous or deadly weapon under Penal Code 1192.7(c)(23), and certain assaults are listed separately. The allegation has to be pleaded and proved, which is why it is fought.
Can an assault or battery conviction be expunged?
A conviction where probation was granted and completed can usually be dismissed under Penal Code 1203.4. That adds a dismissal notation to the record; it does not erase it, and California has no remedy that does. An arrest that produced no conviction is a different situation and can be sealed under Penal Code 851.91.
What if I was defending myself?
Self-defense is a complete defense where the belief in imminent harm was reasonable and the force used was reasonably necessary to stop it. Once properly raised, the prosecution must disprove it beyond a reasonable doubt. Photographs of your own injuries, the 911 audio, and witnesses who saw who started it matter enormously, and they are the evidence that disappears first.
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What clients say
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12 counts 2 felony charges DISMISSED … he got him out of jail FAST.
★★★★★
I just walked out of court a free man after getting my case dismissed.
From the beginning to the end, Patrick and his professional office staff kept us informed on any updates, concluding the case with a dismissal!
Best defense attorney in town. … He cares about his clients and takes every case seriously. The staff is friendly and caring.
Meet your attorney
Law Offices of Patrick S. Aguirre
A Professional Law Corporation
The future of your case may depend on a successful outcome. It can be stressful to go through the legal process alone—but thankfully, you don’t have to.
The Law Offices of Patrick S. Aguirre will stand up for clients’ interests and rights, providing high-quality representation in personal injury cases and criminal defense matters throughout California from its Long Beach office.
We work with you and for your best interests. Our legal team is compassionate, hard-working, and tenacious—fighting to get the job done right when it matters most. No case is too complicated or insignificant for our full attention. Our clients may move forward into a brighter future free from worry about past mistakes.
We’re the legal team that never gives up. When you need an attorney who will fight for what’s right, turn to us, and we’ll do everything in our power to help. No matter how challenging your situation may seem, there is hope.
“Courage is the most important attribute of a lawyer.”
Robert F. Kennedy
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