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AWARD WINNING ORANGE COUNTY CRIMINAL ATTORNEY

Orange County Battery On a Peace Officer Attorney?

In California, police officers are protected people, and described as a “special person.” Pursuant to California Penal Code §§243(b) and 243(c) (2), it is a crime to commit a battery on a policeman. The crime is described as willfully touching a police officer, or any other protected official, while that individual is performing their official duties. In turn, §243(b) defines the crime of battery against a special person as:

A battery committed on a policeman or any other protected person while that person is performing their official duties, regardless of whether that person is on, or off duty.

The distinction between simple battery and battery on a police officer is the additional two required elements that the victim was a policeman, or other protected official, and the Defendant, knew, or should have known, that the victim was a policeman who was performing their official duty at the time of the battery. Another distinction is the penalty associated with the battery. A battery on a policeman carries more severe penalties than a simple battery. It is irrelevant if the policeman was on duty, or off duty, so long as the individual was performing their official duty.

Example:

Jimmy is a police officer who moonlights as a private security guard at a popular local nightclub. When Jimmy arrived to the nightclub to start his night shift there, he was wearing his police uniform. Out of nowhere, Clark threw a bottle of vodka at Jimmy, hitting him in the chest. Clark can be convicted of battery on a policeman because §243(b) of the California Penal Code specifically holds that a policeman, whether on duty, or off duty, who is working as a private security guard, is a protect person for purposes of the battery enhancement.

California Penal Code §243(b) and Court decisions have established that the following people are “protected people” for purposes of the battery enhancement provision:

  • A firefighter
  • Emergency medical technician
  • Lifeguard
  • Process server
  • Traffic officer
  • Code enforcement officer
  • Animal control officer, or
  • Search and rescue member engaged, including Doctors and Nurses providing emergency medical care.
  • Lifeguard
  • Security officer
  • Custody assistant
  • Custodial officer
  • Firefighter


In addition to §243(b), section 243(c) requires an aggravated penalty if you commit a battery on a protected person, and that person is injured by the battery.

Example (1):

Donnie is a six foot tall ex-navy SEAL, who is currently in the ICU of Sharpe Memorial Hospital. A nurse, tried to stick a needle in his arm to start an IV. Donnie, hates needles despite his extensive training, and shoves the nurse across the room, causing her to fall and break her ankle. In this case, Donnie can be convicted for violating §423 (battery), §423(b) (battery on a protected person –nurse in the performance of their duties, and will face additional penalties pursuant to §423(c) because the victim suffered an injury as a result of the battery.

Example (2):

Jimmy is a police officer in downtown San Diego. After receiving a call about a homeless man behaving erratically, Jimmy went to investigate. Based on his experience, Jimmy suspected the man was high on methamphetamines. Jimmy approached the homeless man and attempted to stop and frisk him. The man was not high, but really disliked police officers, and disliked having his personal space invaded even more. While Jimmy was focused on frisking the homeless man, the homeless man kicked Jimmy in the groin, causing Jimmy to fall to the ground. During the fall, Jimmy broke his wrist. The homeless man can be convicted under §423 (battery), §423(b) (battery on a protected person – policeman – during the performance of his official duties,), and the §423(c) sentence enhancement because the battery injured Jimmy; specifically the kick to his groin, and the broken wrist from the fall.

Example (3):

Dom, a lifeguard at Mission beach observed an obviously intoxicated woman doing cartwheels on the beach. He overheard the woman say that she wanted to go swimming, so he decided to keep an eye on her. Eventually, the intoxicated woman went into the ocean. While in the ocean it was clear to the lifeguard that she was in no condition to swim, and was in fact, drowning. Dom rushed into the water and attempted to rescue the woman. During the rescue, the woman clawed at Dom’s face, and poked his eye; resulting in partial blindness in Dom’s left eye. The woman can be convicted of §423 (battery), §423(b) (battery on a protected person – lifeguard- during the performance of their official duty, and sentence enhancement because the battery resulted in an injury to Dom, specifically the partial blindness in Dom’s left eye.

In order to obtain a conviction under §423(b), the prosecution must prove five elements beyond a reasonable doubt:

  • The Defendant touched the person of another;
  • That touching was willful;
  • That touching amounted to being harmful or offensive;
  • The person touched was a policeman, or another “protected person” in the performance of their duties; and

The Defendant knew, or should have known, that the victim was a policeman, or other protected person in the performance of their duties.

Example:

Sammy, a police officer, went to a local dive bar after a particularly rough day in his regular clothing. Dan, a regular at the bar was particularly drunk after 8 rum-and-cokes. Dan overhead Sammy talking to the bartender about how the Chargers were the most underrated team in the NFL. Dan was a die-hard Raiders fan, and took offense to any suggestion that the Chargers were a good team. Dan walked up to Sammy, and punched him the back of the head. Dan will not be convicted of battery on a policeman, pursuant to §423(b), because Sammy was not on duty acting in his official capacity, and Dan could not have known that Sammy was a police officer. Dan may still be convicted of battery under §423 because he willfully caused a physical touching of Sammy’s person in a harmful or offensive manner.

What are the Penalties if I am Convicted of Battery on A Police Officer?

The Prosecutor can bring a §423(b) charge of battery on a policeman as either a misdemeanor, or a felony. This is known as a “wobbler offense” in California. The determination of whether to charge the offense as a misdemeanor or a felony will be based on the facts of the case. If the battery is extreme, or the victim suffered serious bodily harm, the Prosecution will likely bring the case as a felony, whereas if the underlying battery was insignificant it will be charged as a misdemeanor. An example of a minor battery might be a person who threw their drink in an officer’s face on the street. The nature of the charge against you will dictate the potential penalties you face.

If you are charged with a misdemeanor violation of California Penal Code §423(b), battery on a policeman, you may face incarceration in county jail for up to one (1) year, a fine of up to two thousand ($2,000) dollars, or a combination of both jail time and a fine.

If you are charged with a felony violation of California Penal Code §423(b) battery on a policeman, you may face incarceration in county jail ranging from sixteen (16) to three (3) years, and a fine of up to ten thousand ($10,000) dollars, or a combination of both jail time and a fine. The determination of the penalty will be based on the facts of the case. Further, the punishment could be much more severe if the battery resulted in an injury to the victim. An injury is defined as a physical harm that requires profession treatment from a physician.

What Are the Legal Defenses my OCCA Attorney Can Raise if I am Charged With Battery on a Police Officer?

A §423(b) assault on a policeman is known as a “wobbler offense” in California. This means that the Prosecutor has the option to charge you with a misdemeanor or a felony. If you are convicted of either, it will go on your criminal background. Your criminal background is available to anyone who conducts a background search on you. Company’s routinely conduct background checks on people they are considering hiring for a position with them. Many employers view a criminal background as evidence that they should not hire you. This becomes even more pronounced if you are convicted of a felony §423(b) violation. If you have been charged with battery on a policeman, contact an attorney at Orange County Criminal Attorney immediately. It is critical that you have competent counsel throughout the course of the criminal proceedings to put you in the best position to obtain a favorable verdict, or minimal punishment. The attorneys at OCCA are extremely familiar with criminal proceedings in Orange County, and will fight effectively and vigorously to obtain a favorable outcome to your case. There are a number of defenses your OCCA attorney can raise in your case, which may result in a not guilty verdict, and your freedom. Some of these defense include:

  • The physical touching was for the purpose of protecting yourself from imminent harm, or for the purpose of protecting another person from imminent harm.
  • The conduct that resulted in the physical touching of the victim was not done willfully
  • You did not know that the victim was a policeman, and a reasonable person would not have known either.
  • When the battery occurred, he victim was not acting in their official capacity, or performing an official duty.
  • You were incorrectly identified as the person who made the physical contact with the victim.

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