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REVERSED: Weapon Did Not Qualify As a Stun Gun

In re M.S. Court: California Courts of Appeal, Docket: A161646 (First Appellate District), Opinion Date: October 22, 2021. M.S. and J.G. argued during a high school class. J.G. hit M.S. with a small book. J.G. was suspended for two days. About a month later, J.G. accused M.S. of taking her backpack. M.S. pulled a rectangular device with protruding antennas out of her bag, turned it on, and said “[t]ry that again, I’m going to tase you.” A spark erupted from the device. J.G. thought the device was a taser and retreated. The principal learned of the incident. The school resource officer, Reed, took custody of the device, identifying it as an “over-the-counter” stun gun. He did not know the weapon’s voltage and testified that the “capability” of a stun gun depended on its voltage. He initially opined that M.S.’s stun gun probably could not immobilize a person but later noted that it could immobilize a person of smaller stature, and, depending on their size, age, and medical condition, could “in some cases even cause death.” The juvenile court found that M.S. brought a stun gun into school, sustained the Penal Code 626.10(a) allegation, reduced the offense to a misdemeanor, adjudicated M.S. a ward of the court, and placed her in her mother’s custody with probation conditions. The court of appeal reversed. There was insufficient evidence to support a finding that the weapon was capable of temporarily immobilizing a person and, therefore, that it qualified as a stun gun under sections 626.10(a) and 244.5(a).

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