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In re Branden O.

May 29, 2009


(Contra Costa County Super. Ct. No. J0801190) Trial Judge: Honorable Lois Haight.

The opinion of the court was delivered by: Sepulveda, J.


The minor appeals from a dispositional order that followed a contested jurisdictional hearing where the juvenile court found that the minor committed assault with a stun gun, a misdemeanor. (Pen. Code, § 244.5.*fn1 ) The minor argues on appeal that insufficient evidence supports the jurisdictional finding, because the person he shocked was not immobilized, as set forth in the statute. He also argues that the juvenile court abused its discretion in admitting expert testimony about the stun gun used by the minor. We find no error and affirm.



On the afternoon of August 17, 2008, two teenaged boys (Hunter B. and John M.)*fn2 were playing on the computer at John M.'s Walnut Creek home, when they looked out the window and saw the minor and another boy they did not know reaching into cars parked in neighbors' driveways.*fn3 Believing that the boys were trying to steal the cars or something inside them, Hunter B. went outside to confront them. When Hunter B. got close to the minor, the minor "tased" him with a stun gun.*fn4 Hunter B. testified that he felt a shock. He took "one step back from the shock," paused for a few seconds, then ran and tackled the minor to the ground and hit him. The minor then "tased" Hunter B. again. When Hunter B. was shocked the second time, he released the minor and then "kind of sat on the ground for a few seconds and recuperated from being tased one more time." Hunter B. wrestled the minor to the ground and punched him. The minor's companion (Joseph C.) then tackled Hunter B., who released the minor and Joseph C. and let them go. Hunter B. walked slowly toward John M., and they called police. A line could be seen on Hunter B.'s upper chest where he was shocked.

Two Walnut Creek police officers detained the minor a short time later and found a stun gun in plain view in the bushes about three feet away from him. One of the officers, Officer Joseph Donleavy, displayed the gun in court, and turned it on. The gun emitted blue light and made a buzzing sound that was "very loud and frightening," according to the juvenile court. Donleavy testified that, based on his training and experience with tasers issued by the police department that have similar capabilities, it was his opinion that the stun gun was capable of temporarily immobilizing someone by inflicting an electrical charge. He acknowledged on cross-examination that he did not know the specific electrical capacity of the device, and he had never actually seen that type of weapon used on a human being in the field.

A petition was filed alleging that the minor came within the provisions of Welfare and Institutions Code section 602, in that he committed misdemeanor assault with a stun gun in violation of section 244.5, subdivision (b). Following a contested jurisdictional hearing, the juvenile court sustained the petition. The court stated, "I saw the stun gun demonstrated here in court. It was very loud. It is a terrifying noise, actually. I saw the blue lights-which looked electrical to this court-unless blue can come out of the air for no reason at all-emanating from this gun." The court said it had seen the wound Hunter B. suffered and heard his testimony that he felt a shock at his chest and heard the "buzz of a taser." The court observed, "He [Hunter B.] did say that he did not get up as fast, right after the taser, as he thought he could have when he felt the shock. He was slower taking after the young man here in this court. [¶] I don't know what else one has to prove that this was a stun gun and that this was used in a very aggressive way."

The court adjudged the minor a ward of the court with no termination date, and placed the minor on probation subject to various terms and conditions. This timely appeal followed.


A. Substantial Evidence Supports Finding that Minor Used a Stun Gun

The minor first argues that there was insufficient evidence that he used a device that met the statutory definition of a stun gun. (§ 244.5, subd. (a).) In reviewing the trial court's determination, this court " "must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' " (In re Manuel G. (1997) 16 Cal.4th 805, 822, original italics.)

At the time the crime was committed, section 244.5 provided that it was unlawful to assault another with a stun gun or taser. (§ 244.5, subd. (b).) A "stun gun" was defined as "any item, except a taser, 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."*fn5 (§ 244.5, subd. (a), italics added.)

The minor argues that the prosecution failed to prove that he violated section 244.5, because Hunter B. was never immobilized by the device used on him. The statute does not define the word "immobilizing," and no published case interprets it. The parties agree that we may rely on dictionary definitions to determine whether the device the minor used was a stun gun, as defined by the statute. (People v. Forrest (1967) 67 Cal.2d 478, 480-481 [dictionary definitions of dirks, daggers].) "Immobilize" is defined as "to make immobile," as "to prevent freedom of movement or effective use of," or "to reduce or eliminate motion of (the body or a part) by mechanical means . . . ." ...

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