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Name: In re Brandon O.
Case #: A123065
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 05/29/2009

Penal Code section 244.5 (assault with stun gun) requires only that the weapon be capable of temporarily immobilizing the victim, not proof that the victim was immobilized. At a contested jurisdictional hearing, the court heard evidence from the victim that Brandon O. tased him with a stun gun, causing him to pause the first time he was shot and to sit down the second time. As a result of the tasing, the victim had a line on his chest where he was shot. A police officer testified that based on his experience with tasers issued by the police department, the stun gun in question was capable of temporarily immobilizing a human by inflicting an electrical charge. When the gun was turned on in court, it emitted a blue light and a loud buzzing noise. The trial court sustained the petition alleging violation of section 244.5. The appellate court upheld the finding, interpreting the statute as requiring only proof that the gun was capable of temporarily (meaning for a limited time) immobilizing the victim, not that the victim is immobilized. Regardless, the evidence was sufficient here that victim was, in fact, immobilized. The court also found no abuse of discretion in admitting the officer’s testimony because he provided sufficient foundation for his testimony, and the testimony was regarding an area beyond common knowledge.