Marc Pelta is a former prosecutor and has practiced criminal defense since 2008. The practice focuses on felony defense and also accepts misdemeanor cases. In assault cases the charging decision sets the range before a defense attorney is involved, and that decision is where the review starts.
This page covers battery as well, because the two charges are usually filed together and defended together.
01The charges
Battery on a spouse, partner or co-parent, PC 243(e)(1). Battery against a spouse, former spouse, cohabitant, fiance, dating partner or the other parent of the defendant's child.
Cases under PC 243(e)(1) also carry the protective orders and collateral consequences described on the domestic violence page.
Battery with serious bodily injury, PC 243(d). Serious bodily injury means a serious impairment of physical condition. The statute lists examples, including loss of consciousness, concussion, bone fracture, a wound requiring extensive suturing, serious disfigurement, and protracted loss or impairment of function of a body part or organ.
A wobbler: up to one year in county jail as a misdemeanor, or two, three or four years as a felony.
Assault with a deadly weapon, PC 245(a)(1). Assault with a deadly weapon or instrument other than a firearm. A knife, a bottle, a vehicle or a heavy object can qualify depending on how it was used.
Assault by force likely to produce great bodily injury, PC 245(a)(4). No weapon is needed. Fists, feet or a fall against concrete can be charged this way if the force used was likely to cause significant injury. The sentencing range is the same as PC 245(a)(1).
02Felony or misdemeanor
PC 243(d), 245(a)(1) and 245(a)(4) are wobblers. The district attorney chooses the filing, and that choice turns on the injury, any weapon, the person's record, the relationship between the parties and what the witnesses and video show.
The pre-filing period matters. Where Pelta Law is retained before charges are filed, the office can present evidence and context to the charging deputy. Whether that changes the filing is up to the district attorney.
03Common defenses
No present ability or no intent. Words alone are not assault. An accidental contact, or a gesture with no ability to carry it out, does not meet the elements.
Not a deadly weapon, not force likely to produce great bodily injury. Whether an object is a deadly weapon depends on how it was used. Force likely to produce great bodily injury is an element of PC 245(a)(4), and the prosecution must prove it beyond a reasonable doubt.
Injury not serious bodily injury. PC 243(d) requires a defined level of injury. Medical records, not the arresting officer's description, are the evidence that question turns on.
Misidentification and false accusation. Bar fights, crowds and disputes between people with a history produce unreliable identifications and accounts shaped by motive.
The evidence itself. Bar cameras, BART and Muni footage, doorbell cameras, 911 audio and body-worn camera video must be requested early, because much is overwritten within weeks. Officer records can be sought through a Pitchess motion, and an unlawful search or seizure can be challenged under PC 1538.5.
04How an assault case moves
Arrest and release. Many misdemeanor assault and battery arrests end in a citation. Felony arrests mean booking, and release on bail or on the person's own recognizance follows a review of the charge, the record and the person's ability to pay.
Arraignment. A person held in custody is arraigned within 48 hours of arrest, not counting Sundays and holidays. The charges are read, a plea is entered, and the prosecutor often asks for a protective order at this hearing.
Pretrial. Discovery, investigation, motions to suppress or dismiss, and negotiation with the district attorney. A case can resolve at this stage by dismissal, reduction or plea, and one that does not is set for trial.
Trial and sentencing. A jury of twelve must be unanimous to convict. After a conviction, the defense presents mitigation and argues for probation or the low end of the range.
05Talking to Pelta Law
Call 415-963-1152 or email marc@peltalaw.com. Do not include facts of the case in an email; contacting the office does not create an attorney-client relationship. A conflict check comes first, and the facts are discussed after it, by phone or in person.
Attorneys referring an assault or battery case, or seeking a second opinion on one, can use the For Attorneys page.
Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement.
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