Introduction

The crime of Assault with Stun Gun or Less Lethal Weapon is codified at California Penal Code section 244.5), which defines a “stun gun” as a non-lethal instrument/weapon which has an offensive/defensive purpose, and which temporarily immobilizes/paralyzes someone via electricity. Penal Code section 244.5(a).

Other non-lethal weapons are defined in California Penal Code section 16780 as any instrument that is capable of firing “less lethal ammunition” (i.e., less lethal than bullets or shotgun pellets), and which can thereby incapacitate, immobilize, or stun people. Penal Code section 16780(a).

The underlying crime of Assault itself is codified at California Penal Code section 240.

Assault with Stun Gun or Less Lethal Weapon – sometimes referred to as “Misuse of a Stun Gun” -- is what’s known in the criminal law milieu as a “Wobbler” (California Penal Code section 17(b). This is a crime that, depending on the circumstances and the prosecutor’s discretion, can either be tried as a misdemeanor or a felony (see below).

Other terms for stun guns are “Tasers” and cattle prods. A Taser is more or less the size of a flashlight and utilizes compressed nitrogen to fire two metal prongs at the target. The hooked prongs are connected to electrical wires more than a dozen feet long that give a 50,000-watt electrical charge when the prongs make contact with the target’s body. Once the prongs attach to the target’s skin or clothing, they can continue to give these shocks every five seconds.

Finally, another less lethal device employed by police officers came to light during the nationwide Black Lives Matter/George Floyd protests in the summer of 2020 when, for example, the LAPD attacked peaceful protestors with bean bag shotguns, rubber-bullet guns, 40 mm single-shot sponge round launchers, and similar projectile weapons. Injuries ranged from ruptured testicles to serious eye injuries.

See: https://www.latimes.com/california/story/2020-06-12/protesters-complain-about-excessive-force

The History of Stun Guns

Stun guns – which can deliver up to 50 thousand volts -- were invented by a man named Jack Cover in the Sixties. Cover was a NASA physicist (literally a rocket scientist) who decided to invent a weapon that could incapacitate someone without killing them, and which could be used in situations and places where a firearm could prove disastrous, such as when trying to subdue an airline hijacker. He named his invention the “Taser”.

By the 1990s, approximately a million of these devices were sold annually. You can typically find them at gun and sporting-goods stores, particularly in LA County.

See: https://www.latimes.com/local/crime/la-me-lapd-tasers-20160401-story.html

Lethality (or Lack Thereof) of Stun Guns/Tasers

Unlike other weapons, such as tear gas rifles or even Mace, you don’t need a license to buy, carry, or use one in this state. You don’t even have to pass a criminal background check. Indeed, you don’t even need to be an adult – as long as you have your parents’ written consent, you can do so when you turn sixteen. Tasers – however – are usually only sold to police officers.

Notwithstanding, stun guns, as well as similar devices, can nevertheless kill people in rare instances – which is obviously why these are categorized as “less lethal” as opposed to “non-lethal”. For example, if you zap somebody with a heart ailment and they die, then you could face far more serious consequences, such as charges for:

Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187;

Voluntary Manslaughter (California Penal Code section 192(a); or

Involuntary Manslaughter (California Penal Code section 192(b)).

Conversely, and hardly surprisingly, police officers who kill people with Tasers rarely face disciplinary charges, much less criminal prosecution.

In any event, deaths from these devices typically result when the victim is zapped multiple times and, again, when he/she/they has a serious underlying health condition, such as epilepsy.

See: https://www.latimes.com/archives/la-xpm-1990-10-08-me-1525-story.html

Barring death, a stun gun can immediately incapacitate someone. For example, if you zap someone in the back, at or near the spine, the target will drop to the ground immobilized. The same will occur if you apply it to the target’s neck or other body area where there is a major nerve area. This occurs because the electrical shock delivered by the stun gun’s darts paralyze the target’s muscles. And, of course, the searing pain also serves to subdue the target.

In addition to being fired as far as fourteen feet away from the target, the stun gun also shocks when it is pressed directly against his/her/their skin.

Assault and Battery Crimes – Assault with Stun Gun or Less Lethal Weapon -- “Strikes”

So if you do seriously injure someone with a stun gun or similar device, and you are charged with a felony in doing so, you could also be charged with a Strike Offense (California Penal Code section 667(a)&(b).

More specifically, you can be charged with a “Violent-Felony Strike” if you “inflic[t] great bodily injury” on the accuser, pursuant to California Penal Code section 667.5(c) (“Violent Felonies”);

See Pen. Code § 667.5(c)(8).

A Strike conviction can significantly increase your prison term (assuming, of course, the court requires you to do prison time). For example, if this is your Second Strike, your underlying prison sentence will be doubled. A Third Strike will automatically get you twenty-five years to life in prison (with potential parole). Even a First Strike will mandate that you serve at least eighty percent of your term before you’re eligible for early release – even if you’ve been a model inmate.

California Statutes – Assault and Battery Crimes -- Assault with Stun Gun or Less Lethal Weapon

California Penal Code section 244.5 (Assault with Stun Gun or Less Lethal Weapon):

This statute makes it illegal to assault someone with a stun gun or “less lethal weapon” (again, see California Penal Code section 16780). See Penal Code section 244.5(a).

Again, this is a “Wobbler” (California Penal Code section 17(b)), so you can be charged with a misdemeanor or a felony.

Surprisingly, even assaulting a cop or fireman with one of these implements is also a Wobbler. First, however, the prosecutor must prove beyond a reasonable doubt that you knew or should have known that at the time of the assault, the victim was in fact a cop or fireman, and was also performing his/her official duties at the time.

California Penal Code section 22610) (Illegal Possession of Stun Gun):

This statute makes it a misdemeanor upon a second conviction for any of the following types of individuals to buy, carry, or use a stun gun:

  1. Anyone who’s previously been convicted of a felony or misdemeanor or felony Assault with a Stun Gun or Less Lethal Weapon (California Penal Code section 244.5) ( Code § 22610(a)); and
  2. Anyone addicted to narcotics ( Code § 22610(b)).

This statute also makes it illegal to sell or provide a minor with one of these devices unless he/she is at least sixteen and has his/her parent/guardian’s written permission. Pen. Code § 22610(c)(1).

A first-time conviction for any of these offenses will be considered a non-criminal infraction and will therefore not go on your permanent record.

Assault and Battery Crimes -- Assault with Stun Gun or Less Lethal Weapon -- Convictions

California Penal Code section 244.5) (Assault with Stun Gun or Less Lethal Weapon):

A misdemeanor conviction hereunder will get you a 1-year max in county jail, but a felony conviction will result in a prison term of one-and-a-quarter, two, or three years in a California penitentiary. Penal Code section 244.5(b). See also Felony Prison Term Not Specified (California Penal Code section 1170(h)(1)).

But if you’re convicted of a felony for assaulting a cop or fireman with a stun gun or less lethal weapon, you can face 24, 36, or 48 months in prison. Penal Code section 244.5(c) & Penal Code section 1170(h)(1).

California Penal Code section 22610 (Illegal Possession of Stun Gun):

A conviction for this misdemeanor entails a max jail sentence of six mos.

Defenses to Assault and Battery Criminal Charges -- Assault with Stun Gun or Less Lethal Weapon

According to the Judicial Council of Calif.’s Criminal Jury Instructions (“CALCRIM”), you can defeat this charge by proving to the jury that:

  1. By using the stun gun or other less lethal weapon, you didn’t do something which “by its nature” would likely cause the application of force upon the accuser;
  2. You didn’t intentionally use the item on the accuser (e.g., the zapping resulted from an accident);
  3. You didn’t know – nor should you reasonably have known – that by using the stun gun or other less lethal weapon in the way you did, that this act would naturally and likely cause the application of force upon the accuser;
  4. At the time you used the stun gun or other less lethal weapon, you didn’t actually have the physical capability to injure the accuser;
  5. You committed the act when you were involuntarily intoxicated or drugged;
  6. The contact you made with the accuser was not harmful, offensive, painful, and/or unwanted (e.g., you were playing a joke on the accuser or he/she/they wanted you to zap them);
  7. You were acting in reasonable self-defense or in defense of another from the accuser (i.e., you actually and reasonably believed you or the third party were in immediate danger of serious physical harm or death).

See CALCRIM number 876 (“Assault with Stun Gun or Less Lethal Weapon -- Pen. Code §§ 240, 244.5(b)”)

See also CALCRIM no. 861 (“Assault on Firefighter or Peace Officer with Stun Gun or Less Lethal Weapon -- Pen. Code §§ 240, 244.5(c))”

CALCRIM no. 3470 (“Right to Self-Defense or Defense of Another”)

Examples of Assault and Battery Crimes – Assault with Stun Gun or Less Lethal Weapon

Ventura Nurse Receives Probation after Zapping Her Ex-Husband’s Pregnant Wife with Stun Gun

In 1988, Ventura resident Susan Gedney, a 32-year-old R.N. in Santa Barbara, had her acrimonious divorce finalized from her husband, Brian Gedney (age unknown). They thereafter engaged in an even more acrimonious custody battle over their kids.

This acrimony reached a violent climax several years later when, on December 26, 1990, Susan allegedly zapped Brian’s new wife, Terri (age 31), with a stun gun inside the Ventura Co. courthouse immediately after one of these custody hearings. The assault allegedly occurred in the presence of Brian and his & Susan’s two minor kids.

More specifically, during a break in the proceedings, Susan allegedly followed Terri into a breakroom at the courthouse. An argument broke out between them, and, as Brian approached, Susan allegedly zapped Terri several times with a stun gun she had allegedly concealed in her purse. (It remains unclear how Susan would have gotten the weapon past the courthouse’s metal detectors.)

Fortunately, Terri – who was several months’ pregnant – was not seriously harmed.

As a result of the foregoing, Susan was charged with the following:

Felony Assault with Stun Gun or Less Lethal Weapon (California Penal Code section 244.5); and

Misdemeanor Unauthorized Possession of Weapon in Public Building (California Penal Code section 171b)

She was therefore facing a maximum of three years in prison (for the felony) plus one year in jail.

In later April 1991, Susan received a relatively light sentence: a two-months’ jail suspended sentence and 60 mos.’ probation. Not surprisingly, Brian was granted sole custody of the kids.

See: https://www.latimes.com/archives/la-xpm-1990-12-27-me-10107-story.html

See also: https://www.latimes.com/archives/la-xpm-1991-04-27-me-441-story.html

Hospital Caregiver Possibly Facing Many Years in Prison for Alleged Stun Gun Assaults

On August 4, 2021, caregivers at a Buena Park hospital noticed that three mentally-ill patients had burns and bruises that the caregivers believed had been caused by electric shocks of some kind. Buena Park PD arrived shortly thereafter to investigate.

After reviewing footage from the hospital’s security cameras, police suspected caregiver Timothy Tovera (age 39) of being the culprit. The videos allegedly depicted him zapping patients (ages 30 to 50) with an electric stun gun when they refused to follow his instructions.

As a result, two weeks later, Tovera was arrested and charged with:

Assault with Stun Gun or Less Lethal Weapon (California Penal Code section 244.5); and

Dependent Adult Abuse (California Penal Code section 368).

Assuming he is convicted of all counts – and assuming these are all felony charges – each Assault with Stun Gun carries a maximum of three years in prison, and each Dependent Adult Abuse charge carries a four-year max.

Tovera allegedly confessed to the assaults to his employer two days before his arrest. As a result of the arrest, his caregiving license is now in jeopardy.

See: https://www.ocregister.com/2021/08/18/caregiver-suspected-of-shocking-patients-at-buena-park-care-facility-arrested/

Anaheim Man Accused of Domestic Violence is Killed by Police Officers Using a Taser Gun

In 2004, the Anaheim Police Department in Orange County began using stun guns for the first time, with more than nine-tenths’ of the force carrying them along with other weapons.

This was unfortunate for local resident Jorge Terrquiz (age twenty-five), whom Anaheim PD claims lunged at them on September 10, 2007 when they came to his apartment to investigate a 9-1-1 hang-up call.

Terrquiz was allegedly the subject of a previous APD “house call” for an incident involving Domestic Battery (California Penal Code section 243(e)(1)), which allegedly resulted in a Temporary Restraining Order (TRO) (California Code of Civil Procedure section 527.6) being issued against him.

Police also alleged that when they arrived at his residence, Terrquiz was in the process of once again assaulting his wife. The two responding officers used a Taser to zap him. In an uncommon occurrence, the electric shocks killed Terrquiz, prompting an investigation by the Orange County DA’s Office. Presumably, however, the investigation uncovered no wrongdoing on the part of the officers as no further news reports about this incident were published thereafter.

See: https://www.latimes.com/archives/la-xpm-2007-sep-11-me-stungun11-story.html

Assault and Battery Crimes – Assault with Stun Gun or Less Lethal Weapon -- Example of a Celebrity Case

Actor David Spade is Zapped with Stun Gun by His Former Personal Assistant

On November 29, 2000, film and TV star David Spade (best known for the hit series Just Shoot Me and numerous Adam Sandler-produced films) was allegedly attacked by his former personal assistant, David Malloy (age thirty). Fortunately, Spade only suffered minor wounds.

That morning, shortly after dawn, Spade (thirty-six) made an emergency call to Beverly Hills PD to report Mallow’s alleged home invasion. Mallow, who was literally twice the size of the diminutive Spade, allegedly zapped the celebrity with a stun gun. However, Spade – who was apparently much tougher than he appeared – somehow managed to escape his clutches, retrieve a shotgun, and scared him off. Police arrived minutes later and subsequently arrested Malloy.

As a result, Malloy was charged with:

First-Degree Residential Burglary (California Penal Code section 460(a); California Penal Code section 459)

Assault with Stun Gun or Less Lethal Weapon (California Penal Code section 244.5).

On January 23, 2001, a judge granted Spade’s request for a Permanent Restraining Order.

See: https://www.latimes.com/archives/la-xpm-2001-jan-24-cl-16050-story.html

But Malloy – who was facing a max of six years in the state pen -- caught a huge break when, on April 19, 2001, a judge sentenced him to 60 months’ formal probation, mental-health counseling, and almost 500 hours of volunteer work. This was in response to Mallow accepting a guilty plea to a single felony for Assault with a Stun Gun in consideration for the burglary charge being dropped.

See: https://abcnews.go.com/Entertainment/story?id=106368&page=1

The Los Angeles Defense Attorney Law Firm (LADALF)

Since May 2005, when she was first admitted to practice law by the State Bar of California, and when she was initially hired by the Los Angeles County Public Defender’s Office, LADALF managing criminal defense lawyer Ninaz Saffari has fought hundreds of assault cases with incomparable success. As you can see from her case results (see home page dropdown menu for “Cases”), many of these cases involved weapons.