A female adult patient files a complaint with the Police Department that an ultrasound technician at a clinic had hugged and attempted to kiss her during the examination in the examination room.The detectives interview the female adult victim and the suspect technician, who denied the accusation. The Huntington Park Police Department submits to the Los Angeles County District Attorney’s Office a charge of battery in violation of Section 242 of the California Penal Code against the ultrasound technician.Battery is defined as “any willful and unlawful use of force or violence upon the person of another” by Penal Code Section 242. It is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment, under Penal Code Section 243.Ordinary Battery Not Sexual Battery:Ordinary battery is differentiated from sexual battery in that sexual battery is defined by Penal Code Section 243.4 as: “touch(ing) an intimate part (sexual organ, anus, groin, or buttocks of any person, and the breast of a female) of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse….”Sexual battery is normally punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000), under Penal Code Section 243.4(a).So, the crime of sexual battery is a “wobbler.” While it is normally charged as a misdemeanor (fine and/or county jail imprisonment), it can be charged as a felony (fine and state prison), depending on the facts of the crime at the prosecutorial discretion of the District Attorney.Misdemeanor Complaint For Battery, Penal Code Section 242:This kind of Complaint usually is filed as a misdemeanor by the District Attorney, consisting of one count. From the experience of this Author, the District Attorney’s Office or the City Attorney’s Office presents its “offer” for disposition of the case to the defense. The offer states what the prosecution wants from the defendant. This offer starts the process of plea bargaining.It takes the prosecutor and defense counsel to agree to a final, plea-bargain disposition, and the Judge to approve it.Ultimately, punishment for such crimes include: (1) stay-away, Protective – Restraining Order; (2) 15 sex counseling sessions; (3) 3-year Summary Probation; (4) no jail time, but 7 days of community service; and (5) $100 restitution fine.******(The Author, Roman P. Mosqueda, has been a criminal defense counsel for over 20 years in cases with the federal and state courts in California and New York)
