Penal Code 244.5 PC: Assault with a Stun Gun or Taser

Under California law, attacking or threatening someone with a less-lethal weapon has serious criminal penalties.

According to California Penal Code Section 244.5 PC, it is specifically illegal to assault another person using a stun gun or Taser.

While standard assault involves trying to cause a violent injury by any method, PC 244.5 specifically targets the use of electronic immobilization devices.

Since these weapons can cause immediate incapacity, severe pain, and secondary injuries from falls, the state sanctions this offense more severely than basic assault.

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The Legal Definition and Elements of the Offense

To secure a conviction for assault with a stun gun or Taser under PC 244.5, the prosecution must establish the required legal elements beyond a reasonable doubt.

These elements are drawn from California's standard instruction framework:

Application of Force: The defendant did an act with a stun gun or Taser that, by its nature, would directly and probably result in the application of force to a person.
Willful Intent: The defendant acted willfully or purposefully.
Awareness of Facts: The defendant knew facts that would make a reasonable person realize their action could likely cause force to another person.
Present Ability: The defendant had the present ability to use the stun gun or Taser to apply force to the other person.
Lack of Justification: The defendant did not act in lawful self-defense or defense of another person.

Statutory Definition of Key Devices

California law clearly specifies the types of weapons included in this statute:

Stun Gun: Under Penal Code Section 17230, a stun gun is any device meant to be used as a defensive or offensive weapon that can temporarily immobilize a person by delivering an electrical charge. Typically, stun guns need direct contact with the victim's body or clothing to administer the shock.
Taser: A common brand name for a dart-firing stun gun. These devices shoot conductive probes connected to thin insulated wires, enabling the user to deliver an incapacitating electrical shock from afar.

Felony vs. Misdemeanor Classification: A "Wobbler" Offense

Penal Code 244.5 PC is classified as a wobbler in California, meaning the District Attorney's office has the discretion to file the case as either a misdemeanor or a felony.

Prosecutors determine the charge for the offense by considering the defendant's criminal history, the seriousness of the confrontation, and whether the victim was part of a protected class.

Misdemeanor Penalties

If found guilty of a misdemeanor under PC 244.5, the law stipulates the following penalties:

Up to 1 year in a county jail.
A maximum fine of up to $1,000.
Summary (informal) probation.

Felony Penalties

If the prosecution charges the offense as a felony, a conviction carries significantly enhanced penalties:

16 months, 2 years, or 3 years in California state prison.
A maximum fine of up to $5,000.
Formal (felony) probation.

Examples of Actions That Constitute Stun Gun Assault

Since an assault charge centers on the attempt and current capacity to use force with an electronic weapon, physical contact, or an electrical shock isn't always necessary to break the law.

Firing a Taser and Missing: During a street argument, someone pulls out a dart-firing Taser and shoots at another person from 10 feet away. The probes miss the target completely and hit a wall. This constitutes a violation of PC 244.5 because the defendant intentionally took action that could have resulted in an incapacitating electrical force being applied to the victim.
Sparking a Stun Gun Aggressively: A person approaches another in an angry, threatening way while repeatedly using a stun gun that sparks and crackles aloud, stepping closer. Since the defendant can currently shock the victim and is making an immediate threat of physical contact, this action qualifies as assault.

Enhanced Penalties for Specific Victims

The law increases the penalties when the assault targets a peace officer or firefighter actively performing their official duties.

Under PC 244.5(c), if the defendant knew or reasonably should have known the victim was an on-duty officer or firefighter, the offense remains a wobbler, but a felony conviction results in a longer state prison sentence of 2, 3, or 4 years.

Collateral Consequences of a PC 244.5 Conviction

A conviction for an offense involving an electronic weapon has consequences that go well beyond court-ordered probation or jail time. Drivers and professionals may experience long-term collateral effects:

Loss of Firearm and Weapon Rights: A felony conviction results in a lifetime ban on possessing or owning firearms in California. Additionally, separate statutes prohibit individuals convicted of violent misdemeanors or felonies from legally purchasing or carrying stun guns or Tasers.
Immigration Consequences: For non-citizens, an assault with a weapon can be classified as a crime of violence under federal immigration law. This classification can result in mandatory deportation, denial of residency, or a finding of inadmissibility.
Professional Licensing Restrictions: Healthcare workers, educators, real estate agents, and other state-licensed professionals may face disciplinary proceedings, suspension, or outright revocation of their licenses following a conviction for a violent crime.

Effective Legal Defenses to Counter the Charges

A skilled California criminal defense attorney can review the underlying facts of an arrest to build an appropriate defense strategy. Common legal defenses against Penal Code 244.5 accusations include:

1. Lawful Self-Defense or Defense of Others

Stun guns are often bought and carried for personal safety. If you genuinely believed you faced an immediate threat of injury or unlawful touching, and used the stun gun proportionally to defend yourself, your actions are legally justified.

2. Lack of Present Ability to Apply Force

An assault charge requires proof of the "present ability" to cause injury. If the stun gun was entirely non-functional, missing a battery, or if the Taser probes failed to hit the target at a distance that prevented physical contact, this element of present ability might not be satisfied.

3. Accidental Discharge (Lack of Willful Intent)

To be convicted, the prosecution must prove you acted willfully. If the device discharged accidentally while inside a pocket or bag during a non-violent dispute, or if it went off during a clumsy physical stumble, the essential element of criminal intent is absent.

Frequently Asked Questions

Is it legal to own and carry a stun gun in California?

In general, yes. Most adult citizens without a criminal record are allowed to buy, own, and carry stun guns or Tasers for self-defense. Nonetheless, possession is strictly forbidden for convicted felons, drug addicts, those convicted of stun gun misuse, or minors under 16 without parental approval.

What is the difference between PC 244.5 and Assault with a Deadly Weapon (PC 245)?

Penal Code 245(a)(1) PC covers assault with a deadly weapon other than a firearm. Although a stun gun can cause injury, California law also established PC 244.5 as a specific statute to address electronic immobilization devices, ensuring they are subject to unique sentencing rules for less-lethal electrical weapons.

Can a felony PC 244.5 charge be reduced to a misdemeanor?

Yes. Since assault with a stun gun is a wobbler, a defense attorney can negotiate with the prosecutor to lower the charge to a misdemeanor during plea bargaining. If the case proceeds to sentencing as a felony, the defense may also file a motion under Penal Code Section 17(b) asking the judge to reduce the offense to a misdemeanor based on mitigating factors.

Consult a California Criminal Defense Attorney

An arrest for assault with a stun gun under Penal Code 244.5 PC entails serious legal consequences that could permanently affect your record, job prospects, and freedom.

Developing an effective defense involves thoroughly reviewing witness statements, surveillance footage, and police procedures.

Contact an experienced California criminal defense law firm at Eisner Gorin LLP today to arrange a confidential consultation and safeguard your constitutional rights.

Assault with a Stun Gun