Information on the crime of assault with a stun gun is found at California penal code section 244.5 PC.
Essentially, in California, it is legal for most persons to own and possess a stun gun (see exceptions below), but it is not legal to assault a person with a stun gun without legal justification (PC 244.5 & PC 22610).
What is Stun Gun?
A stun gun is a handheld device that is designed to temporarily immobilize a person, usually by strong electrical charge, without causing serious or permanent injury. The stun gun works by connecting an electrical circuit through a person’s body by way of two electrical prods, which can be shot at the target or placed up against the target, depending on the design (PC 244.5).
Note: The stun gun is traditionally a handheld device that is shaped like a gun (thus the name), but modern stun guns often disguise their purpose by resembling a cell phone, flashlight, etc.
Stun Gun v. Taser?
The term “stun gun” is a generic term for any device that is designed to temporarily immobilize or “stun” a person, usually with an electrical charge. A TASER is a name brand stun gun and invariably uses electricity to immobilize a person. In fact, the name TASER is an acronym that stems from a 1911 novel called “Thomas Swift and His Electric Rifle.”
Note: Both stun guns and TASERs serve the same purpose and can take the shape of any form, even shapes that look nothing like a gun.
Is It Legal to Own a Stun Gun?
In California, a person who is otherwise not prohibited from owning or possessing a stun gun (or TASER), may own, possess, and carry a stun gun (PC 244.5 & PC 22610).
Prohibited Persons (PC 22610 Abbrev.)
Per 22610, a person may purchase, possess, or use a stun gun subject to the following requirements.
No convicted felony may own or possess a stun gun (PC 22610(a) Abbrev.).
No person addicted to any narcotic drug shall purchase, possess, or use a stun gun (PC 22610(b)).
No person shall sell or furnish any stun gun to a minor unless the minor is at least 16 years of age and has the written consent of the minor’s parent or legal guardian (PC 22610 (c)(1)).
No minor shall possess any stun gun unless the minor is at least 16 years of age and has the written consent of the minor’s parent or legal guardian (PC 244.5 & PC 22610(d)).
Assault with Stun Gun
Per penal code 244.5, it is illegal to intentionally apply force to another person (assault) with a stun gun (or TASER) without consent or legal justification (self-defense). It is also illegal to attempt to assault another person with a stun gun, even if the defendant misses the intended target of his assault (PC 664/244.5).
Note: PC 244.5 also covers the law of assault with “less lethal weapons” such as any device that is designed to, or that has been converted, to expel or propel ammunition for the purpose of incapacitating or immobilizing a person or his senses. Examples include disorienting strobe light, rubber bullets, sling shot, pepper spray, and more. However, for purposes of brevity, this article focuses on the use of stun guns (PC 244.5 & PC 16780).
Example: Just for fun, Marshall, Will, and Holly set out on a routine expedition to assault innocent people with stun guns and pepper spray. When the three assailants see David, they attack. Marshall fires a stun gun at David, which incapacitates David; Will also fires a stun gun at David, but Marshall misses his target; Holly sprays pepper spray into David’s eyes as he is writhing on the ground from Marshall stun gun. Result: Marshall and Holly may be charged with a violation of PC 244.5, and Will may be charged with attempted assault with a stun gun (PC 664/244.5).
Example II: David and Goliath fire their respective stun guns at Methuselah…just for fun. David’s aim is spot on, and Methuselah goes down for the court. Goliath fires his stun and hits his mark as well, but unbeknownst to Goliath, his stun gun was defective and causes no incapacitating effect on Methuselah: Result: Both David and Goliath may be charged with a violation of PC 244.5. This is because the probes of both defendant’s stun gun struck the victim, even though Goliath’s stun gun was not operational.
Example III: David and Goliath agree to shoot each other with stun guns…just for fun. Neither David, nor Goliath are guilty of PC 244.5. This is because both David and Goliath consented to the application of force against each other (some exception may apply to consensual use of stun guns if the consent otherwise amounts to a breach of the peace or known serious physical injury).
Example IV: David attacks Goliath with a sling…without legal justification. Goliath immediately responds by firing his stun gun at David: Result: David is guilty of PC 244.5 because a sling is a “less lethal weapon,” and he had no legal justification for attacking Goliath. Goliath is not guilty of PC 244.5 because he had legal justification to repel David’s attack (i.e., self-defense).
PC 244.5 Penalties & Sentence
The crime of assault with a stun gun is classified as a “wobbler” offense. A wobbler offense is a crime that may be charged as a either a felony, or alternatively as a misdemeanor, depending on the facts and circumstances of the case and the defendant’s criminal history (PC 244.5(b)) (For more information, see Wobbler Crimes).
Felony PC 244.5 Sentence: If the defendant is found guilty of assault with a stun gun as a felony, the defendant may face either a probation sentence (see below), a sixteen (16) month jail sentence, a two (2) year jail sentence, or a three (3) year jail sentence (PC 244.5-F).
Note: Whether a defendant receives a probation sentence or an actual jail sentence, and the length of jail sentence, depends on many factors, including the defendant’s criminal history, the sophistication level of the crime, the remorse shown, if any, by the defendant, the terms of a negotiated plea bargain, if any, and more.
Misdemeanor PC 244.5: If the defend is found guilty of assault with a stun gun as a misdemeanor, the defendant may face either a probation sentence, or a jail sentence up to one (1) year (PC 244.5-M).
Whether a defendant, who is convicted of misdemeanor penal code 244.5, receives a jail sentence or a probation sentence, depends on similar factors listed above at “Felony PC 244.5 Sentence.”
Note: If the defendant assaults a police officer with a stun gun, then the defendant may face up to four (4) years in jail, as opposed to the maximum three (3) years for non-peace officer victims (PC 244.5(c)).
Probation Sentence for PC 244.5
A probation sentence is a period of supervision, either by the court or by a probation officer, which is intended to punish the defendant, as well as rehabilitate him, without the defendant serving a jail sentence.
A probation sentence is allowed in both felony and misdemeanor PC 244.5 crimes, but a probation sentence is never guaranteed. Whether or not a defendant is granted a probation sentence after a conviction for assault with a stun gun depends on many factors, including the disposition of any negotiated plea bargain between the defendant and the district attorney (or court), the defendant’s criminal history, the suitability of the defendant to serve a probation sentence, and much more.
If granted, a probation sentence carries “conditions of probation.” Conditions of probation are terms that must be obeyed. If the terms are not obeyed, the defendant may be returned to jail. The terms of probation in PC 244.5 cases usually include stay out of trouble (no new felony or misdemeanor offenses while on probation), pay restitution to the victim, refrain from contact with the victim (criminal protective orders), pay court fines and fees, and more.
Note: It is not uncommon for a probation sentence to include a condition that the defendant serve some jail time. However, when a jail sentence is ordered as a condition of probation, that jail sentence is generally much shorter than the jail sentence that the defendant would otherwise have received if probation was not granted, and that jail sentence may usually, but not always, be served alternatively on work release or house arrest (See Misdemeanor v. Felony Probation & Work Release Sentence for more information).
Suspended Felony Sentence: If the defendant is found guilty of PC 244.5, and she is not granted a probation sentence, then the defendant must serve either a 16-month, 2 year, or 3 year jail sentence, depending on the facts and circumstances of the assault. However, per California penal code section 1170, the defendant may have her jail sentence “suspended,” which means the defendant does not serve the jail sentence unless and until she violates a condition of her out-of-custody release (For more information, see PC 1170(h) Sentencing).
California Strike Offense: A felony conviction of assault with a stun gun may be classified as a "strike" offense under California’s Three Strike Sentencing Law.
Whether PC 244.5 is classified as a strike depends on the fact of the case, and more importantly, the terms of any negotiated plea deal between the district attorney and the defendant. PC 244.5 conviction are presumptively strike convictions unless the record of conviction (ROC) states otherwise. This makes it vital for the criminal defense attorney to ensure the “non-strike” language is incorporated into the plea bargain if that is the intent of the plea agreement (PC 244.5 & PC 1192.7).
Non-Exclusive Charging
The district attorney is not forbidden from charging a defendant with assault with a stun gun, and simultaneously, or alternatively with the crimes of simple assault (PC 240), assault with a deadly weapon (PC 245), simple battery (PC 242), domestic violence (PC 243(e)(1), or PC 273.5(a)), or more (PC 244.5(d)).
Additional Punishment: In addition to a possible jail sentence or probation sentence, if found guilty of penal code 244.5, the defendant will face other direct and indirect consequences, including professional licensing consequences, loss of the right to own or possess a firearm, military service consequences, immigration consequences, civil lawsuits from victims, criminal protective orders, restitution orders, and much more.
Note: The loss of the right to own or possess firearm is a lifetime ban for felony convictions of PC 244.5-F, and ten (10) year restrictions for misdemeanor convictions of PC 244.5-M.
Assault with Stun Gun Defense
The facts that support and allegation of assault with a stun gun vary from case to case. Therefore, the defenses that apply to a PC 244.5 case vary from case to case.
With that said, the most likely defenses that might apply to a PC 244.5 criminal charge include self-defense (use of a stun gun for protection), defense of others, coerced confession, illegal search and seizure, statute of limitations violations (Three (3) years for both misdemeanor and felony PC 244.5 violations), alibi defense, consent (limited application), mistake of fact (genuine, but unreasonable belief that the defendant needed to use a stun gun for self-defense, or that the stun gun was not, in fact, a weapon), impeachment of the credibility of the prosecution witnesses, and entrapment.
Example: David uses a stun gun to immobilize Goliath because Goliath is about to attack David without legal justification. Result: David is privileged to use the stun gun against Goliath in self-defense.
Judicial Diversion: In some cases, the defendant might be allowed to circumvent the criminal process through a process known as diversion. Essentially, diversion, if granted, allows the defendant to avoid a criminal conviction of PC 244.5 if she complies with certain court condition (similar to probation conditions). Keep in mind that diversion is not automatically granted; it must be requested through a formal petition with the court and then the court will decide based on the interest of justice (For more information, see Judicial Diversion).
17(b Motion to Reduce Felony: In some cases, the defendant may be granted a penal code 17(b) motion, which reduces her felony PC 244.5 charge to a misdemeanor charge. This can be accomplished in some cases either before conviction, or after conviction. If granted, a 17(b) motion will reduce the direct and indirect consequences of a conviction for assault with a stun gun (For more information, see PC 17(b) Motion to Reduce).
Post-Conviction Options
Post-Conviction Options in penal code 244.5 cases include withdraw of a plea (limited application), expunge the criminal conviction (PC 1203.4), modify or reduce a probation sentence (PC 1203.3), petition for certificate of rehabilitation (PC 4852), appeal the criminal conviction, and more.
For more information about California’s new assault with stun gun law, or PC 244.5 & 244.5(b), contact our criminal defense attorneys for a free consultation. Our group of experienced and passionate defense attorney have helped hundreds of suspects and defendants in the Inland Empire, including the cities and courts of Riverside, San Bernardino, Fontana, Redlands, Montclair, Eastvale, Apple Valley, Grand Terrace, Rialto, Victorville, Yucaipa, and more. Call today!
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