In re M.S.

Filed 10/22/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re M.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, A161646 Plaintiff and Respondent, v. (Solano County Super. Ct. No. J44979) M.S., Defendant and Appellant.

15-year-old M.S. appeals from the juvenile court’s order sustaining an allegation under Penal Code section 626.10, subdivision (a) that she possessed a stun gun on school grounds. 1 She contends there was insufficient evidence to support the court’s finding that the weapon she used to threaten another student with was capable of temporarily immobilizing a person and, therefore, that it qualified as a stun gun within the meaning of sections 626.10, subdivision (a) and 244.5, subdivision (a). We agree with M.S. and therefore reverse.

M.S. appeals from the final judgment entered after the dispositional 1

order. Because we reverse the jurisdictional order, any appeal from the dispositional order is moot. Unless otherwise indicated, further statutory citations are to the Penal Code.

1

BACKGROUND M.S. and J.G. attended the same high school. Their relationship, although limited, was acrimonious. In early January 2020 they argued during class and J.G. hit M.S. with a “small reading book.” J.G. was suspended for two days. About a month later the two had another confrontation. J.G. had just finished a P.E. class and discovered his backpack was gone. M.S. was nearby, “hanging out hiding in the bushes with her friends.” J.G. accused her of taking the backpack. She responded, “[b]itch, you think I got your backpack, go away,” and hung around calling J.G. names while he and a friend searched for it. J.G. told her to “back off” or he would “pull the book on her again,” and then held up a book (in fact, the sequel to the book that figured in their previous altercation). M.S. pulled a pink rectangular device with two protruding antennas out of her bag, turned it on, and said “[t]ry that again, I’m going to tase you in the dick.” A spark erupted from the device when M.S. turned it on. J.G. thought the device was a taser, “panicked a bit,” and retreated. When the principal learned of the incident he summoned M.S. to his office and asked if she had the device with her. M.S. handed it over and said she had pulled it out in self-defense. The principal notified the school resource officer, Officer Reed, who took custody of the device. It was admitted into evidence at the jurisdictional hearing. At the time of the hearing, Officer Reed had been a police officer for six and one-half to seven years. He had learned about tasers and stun guns during basic academy training, 2 participated in quarterly and annual