I. PC 244.5: Assault with a Stun Gun

Legal Definition:

(a) As used in this section, “stun gun” means any item, except a less-lethal weapon, as defined in Section 16780, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge.

(b) Every person who commits an assault upon the person of another with a stun gun or less-lethal weapon, as defined in Section 16780, shall be punished by imprisonment in a county jail for a term not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, two, or three years.

(c) Every person who commits an assault upon the person of a peace officer or firefighter with a stun gun or less-lethal weapon, as defined in Section 16780, who knows or reasonably should know that the person is a peace officer or firefighter engaged in the performance of his or her duties when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the county jail for a term not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

For a person to be convicted of a violation of PC 244.5 the prosecution must show that:

1. You did an act with a stun gun/less-lethal weapon that by its nature would directly and probably result in the application of force to a person;
2. You did that act willfully;
3. When you acted, you were aware of facts that would lead a reasonable person to realize that your act by its nature would directly and probably result in the application of force to someone;

AND

4. When you acted, you had the present ability to apply force with a stun gun/less-lethal weapon to a person;

AND

5. You did not act in self-defense/in defense of someone else.

II. What does this mean?

Stun guns are defined very broadly in  California and a lot of items are considered stun guns. A stun gun is anything, except a less-lethal weapon, that is used or intended to be used as either an offensive or defensive weapon and is capable of temporarily immobilizing someone by inflicting an electrical charge. A less-lethal weapon is any device that is either designed to or that has been converted to expel or propel less-lethal ammunition by any action, mechanism, or process for the purpose of incapacitating, immobilizing, or stunning a human being through the infliction of any less than lethal impairment of physical condition, function, or senses, including physical pain or discomfort. It is not necessary that the weapon leave any lasting or permanent incapacitation, discomfort, pain, or other injury or disability in order to qualify as a less-lethal weapon.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

When you “tase” or stun another person, you don’t have to actually “harm” someone during the act to be charged. But if you do, that is a factor considered in whether you actually assaulted someone.

III. Penalties

A violation under PC 244.5 is a wobbler offense. This means you can be charged under this section as a misdemeanor or as a felony offense. Whether you are charged with a misdemeanor or a felony offense, depends on the specific facts of your case, your criminal history, and the possible injury to the other person (though it is not required). If you are convicted of this charge as a felony, you could be sentenced up to 16 months, 2 or 3 years in County Jail. If you are convicted of this charge as a misdemeanor, you could be sentenced to up to one year in County Jail. You would be required to serve at least 50% of that time in custody.

If the stun gun is used on a peace officer or a firefighter, then you can be sentenced to upwards of 2, 3, or 4 years in State Prison.

This is generally not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. This could be considered a Strike offense if the person suffers Great Bodily Injury during the assault. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you could face Deportation in Immigration Court since this crime may be considered an aggravated felony since you would have been using a stun gun in the commission of this offense.

IV. Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Violation of Rights
4. Self-Defense

In California, you are allowed to use force against another person if you reasonably believe that you must use force to defend yourself against the threat of immediate harm. In other words, if you are threatened with an attack, you have the right to defend yourself, and fight back. Here, if you are being attacked by another, maybe a mugger, you could use your stun gun to stop them from attacking you. You were be justified herein using the force since you were acting in self-defense of yourself on an imminent attack.

Another defense can be if police violate your rights under the Fourth Amendment. If the police were to detain you, without any probable cause, and find the stun gun on you, then that could be challenged by your Ontario Criminal Defense Attorney, thus having your case thrown out of Court. This also applies if the police search an area with a warrant that does not include that area within their search warrant. These are violations of your rights and you can challenge them with your Attorney under PC 1538.5. In most cases, the charge would not be thrown out of a court with a successful motion, but here, if the item seized is the stun gun, this can mean your case gets dismissed.

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