In every courthouse, perhaps every day, there are charges filed for assault with a deadly weapon or assault by means of force likely to cause great bodily injury (245(a)). It is a common charge. It is quite uncommon, however, to see charges filed for a violation of 243(d). The wise defendant, however, should understand the similarity and distinctions between the two charges.
A violation of Penal Code § 245(a), assault with a deadly weapon likely to cause great bodily injury, is a “Strike” under the California Three Strikes Law and carries with it a state prison sentence up to four years, to be served by time of at least 85% of the term.
A violation of Penal Code § 243(d), battery involving the infliction of serious bodily injury, carries with a maximum term of four years as well, but it is not a “Strike,” so a defendant convicted of 243(d) will not serve a minimum of 85% of the term. In other words, it is more attractive from a sentencing perspective than a violation of 245(a), unless one pleads to a violation of 245(a)(4), which is not a Strike.
Both offenses are wobblers, meaning that a conviction for either can be charged as a misdemeanor. Both offenses, if convictions as a felony are reached, carry with it a lifetime ban on possession, owning or purchasing a firearm under federal law and a ten-year ban under California law.
It should be mentioned that, in comparing the two crimes, § 245(a) punishes the use of extreme force, while 243(d) “punishes the consequences.” People v. Parish (1985) 170 Cal.App.3d 336, at 345. Also, great bodily injury and serious bodily injury are essentially equivalent. People v. Sloan (2007) 42 Cal.4th 110, 117; People v. Wade (2012) 204 Cal.App.4th 1142, 1149.
Except by plea agreement, a person cannot be punished for a battery with serious bodily injury (243(d)) and also receive a great bodily injury enhancement (under Penal Code § 12022.7, for example) on that offense. People v. Otterstein (1987) 189 Cal.App.3d 1548, 1549.
There is some debate as to whether a prosecutor may, without violating the Eighth Amendment ban on double jeopardy (as well as California Penal Code § 654), allege a 12022.7 enhancement for great bodily injury on a battery causing serious bodily injury, 243(d). In People v. Hawkins (2002) 108 Cal.App.4th 527, the court found it was improper. The trial court had tried to limit presenting custody credits on a violation of § 243(d) under Penal Code § 2933.1. Section 2933.1 limits pre-sentence credits to 15% to those crimes defined as violent felonies under Penal Code § 667.5(c), including any crime in which there was a 12022.7 enhancement found or admitted to be true.
The Hawkins court held that except under circumstances involving domestic violence (see Penal Code § 12022.7(e)), a 12022.7 great bodily injury enhancement cannot be alleged on a violation of 243(d) because such an allegation is expressly prohibited by § 12022.7(g) if great bodily injury is an element of the offense. Hawkins, at 530.
In People v. Parrish (1985) 170 Cal.App.3d 336, defendant was convicted of violating Penal Code § 245(a) (assault by means of force likely to produce great bodily injury) with a Penal Code § 12022.7 enhancement. Defendant challenged the conviction on equal protection grounds because a 245(a) conviction with a great bodily injury enhancement carries a much longer period of punishment than does the functionally equivalent charge of 243(d), battery with serious bodily injury. The appellate court held that Penal Code §§ 245(a) and 243(d) do not proscribe conduct that is functionally equivalent, so persons charged with violations of those statutes are not similarly situated for equal protection purposes. Parish, supra, at 345. Assault punishes the use of force, while battery punishes the results.
However, the court held that a person may be charged with both offense, but cannot be punished (without violating Penal Code § 654) for more than one crime arising out of the same act or course of conduct. People v. Sloan (2007) 42 Cal.4th 110, 116.
We present this article to suggest it may be better in plea bargaining to suggest a violation of 243(d), especially if it is a first offense, rather than 245(a)(1), (a)(2) or (a)(3), because 243(d) is not a strike if the prosecutor declines an invitation to resolve the case by a plea to 245(a)(4), which is not a strike.
For more information about battery in general, battery against a police officer and bodily injury enhancements, please click on the following articles: