Opinion
D041274.
11-20-2003
In re ROCHELLE B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROCHELLE B., Defendant and Appellant.
The juvenile court declared Rochelle B. a ward (Welf. & Inst. Code, § 602) after entering a true finding that she made a criminal threat (Pen. Code, § 422). The court committed her to Breaking Cycles for a maximum term of 90 days, to be followed by probation. Rochelle appeals, contending (1) there is insufficient evidence to support the finding of criminal threat; (2) the court erred by admitting evidence in violation of Rochelles rights under Miranda v. Arizona (l966) 384 U.S. 436 (Miranda); and (3) the courts failure to exercise its discretion to determine whether the offense is a felony or a misdemeanor requires remand. We agree remand is necessary to determine whether the offense is a felony or a misdemeanor. In all other respects, we affirm.
All future statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Jasmine E. testified that in September 2002, during Rochelles first week in a new school, Rochelle and Jasmine had a verbal altercation while they were playing football. The two later apologized, but stayed away from each other.
In mid-September, when Jasmine was excused from science class to use the bathroom, she smelled and saw marijuana smoke in the bathroom immediately after Rochelle had used the bathroom. Two or three days later, Jasmine wrote her science teacher a note, telling him she thought Rochelle had smoked marijuana in the bathroom. That same day, school officials called Rochelle out of class and checked into the allegation.
When Rochelle returned to science class, Josh R. told her that Jasmine had reported her to school authorities. Jasmine then heard Rochelle say she would have a big surprise for Jasmine on Monday when her skinhead friends would beat up Jasmine with bats and do a drive-by. Jasmine was scared because Rochelle sounded serious. Jasmine spoke with her science teacher after class about Rochelles statement. She told her friend Candace she was scared. When Jasmines father was late picking her up from school, she asked her science teacher to wait with her and her two brothers "just in case they . . . showed up and started beating me up." She told her father about Rochelles statement when she got home. The next day, Jasmine and her father reported the statement.
Jasmines friend Heather F. testified she was sitting next to Rochelle in science class and heard Rochelle say she would have her skinhead boyfriend beat Jasmine with a "nigger stick." When she made the statement, Rochelle was neither joking nor laughing, but was serious. At the time Rochelle made the statement, Jasmine was in the front of the room, where Jasmine could not have heard it. Jasmine learned of the threat from another friend, Candace W.
Candace W. testified she heard Rochelle call Jasmine names but did not hear her threaten Jasmine. Rochelle did, however, discuss her skinhead boyfriend with Candace.
Lisa McColl, the acting-principal, called Rochelle into her office to discuss the incident. Also present was Detective Kimberly Houry, a police officer working with the school district. When McColl told Rochelle she had learned Rochelle had threatened a student, Rochelle responded, "Why would I threaten Jasmine?" Rochelle understood that it is wrong to threaten to injure someone.
Rochelle testified in her own defense. Jasmine and Heather mimicked her in the locker room and later made fun of the way she threw a football. Rochelle also heard that Jasmine had reported her for smoking marijuana in the bathroom. As a result, school authorities searched Rochelle, but found nothing. Josh R., who was also searched, said, "If I find out who told on me, Im going to beat their ass." Jasmine was not in the classroom when Josh made that statement.
Rochelle denied threatening Jasmine. She admitted she had told Josh that a skinhead friend, who had gone to jail for beating up black people, was going to pick her up from school on Monday. Jasmine, Heather and Candace were not near her when she told Josh about her skinhead friend.
At the end of the adjudication hearing, Judge Valentine sustained the petition, which charged Rochelle with a felony, and set the maximum term as three years. Defense counsel then informed the court that criminal threat is a wobbler offense and moved that the conviction be reduced to a misdemeanor. Judge Valentine stated he would address the motion on the day of, but prior to, the disposition hearing, after reviewing the social study.
Judge Valentine was not available at the time set to hear the motion, so the motion was taken off calendar. Although Judge Isackson, who presided over the disposition hearing, reviewed the social study, the social study failed to mention that the crime is a wobbler. Judge Isackson gave the maximum term of three years. At the disposition hearing, the prosecutor moved that the restitution fine be increased because the conviction "was a true found felony." The court agreed and increased the fine stating, "This is a felony."
DISCUSSION
I. Sufficiency of the Evidence
Rochelle contends the evidence is insufficient to support her conviction. "In assessing a claim of insufficiency of evidence, [we review] . . . the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 422, which defines a criminal threat, provides in part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . , shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." Rochelle contends there is insufficient evidence (1) she intended her comments to be communicated to Jasmine and (2) the threat was so unequivocal, immediate and specific as to convey a gravity of purpose and an immediate prospect of executing the threat.
In order to convict a defendant of a criminal threat, the prosecution must show the defendant "made the threat with the specific intent that the statement . . . is to be taken as a threat. " (People v. Toledo (2001) 26 Cal.4th 221, 228.) The threat need not be directly communicated to the victim, but may be "conveyed by the threatener through a third party . . . . Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed." (In re David L. (1991) 234 Cal.App.3d 1655, 1659.)
Substantial evidence supports the courts implied finding that Rochelle intended her statements to be a threat. "[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions." (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) Jasmines testimony that she heard Rochelles statement provides substantial evidence the statement was directly communicated to her.
Alternatively, "[t]he communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., supra, 234 Cal.App.3d at p. 1659.) Heathers testimony provides substantial evidence that Rochelle said the statement in front of Jasmines friends, Heather and/or Candace. Further, Rochelle knew Candace and Heather were Jasmines friends: Rochelle testified (1) Candace was Jasmines friend and (2) Jasmine and Heather mimicked her, which leads to a reasonable inference that Rochelle knew Jasmine and Heather were friends. Further, Jasmine and Rochelles altercations, including Jasmines reporting Rochelles marijuana smoking to school authorities, created a climate of hostility between the girls. That "climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened." (Ibid.)
Rochelle also contends her statement was not so unequivocal, immediate and specific to convey an immediacy of purpose and immediate prospect of execution to cause a reasonable person to fear for her safety. Although section 422 requires an immediate prospect of execution, "[i]t does not require an immediate ability to carry out the stated threat." (People v. Lopez (1999) 74 Cal.App.4th 675, 679; In re David L., supra, 234 Cal.App.3d at p. 1660; see People v. Melhaldo (1998) 60 Cal.App.4th 1529; 1538 [the focus is the future prospect of the threat being carried out].) In this case, Rochelle did not threaten to harm Jasmine immediately; she threatened to harm her the following Monday. Rochelles statement, made shortly after she was searched for drugs, was neither conditional nor was it made in jest. Given the hostilities between Rochelle and Jasmine, a reasonable person would have feared for her safety.
Rochelle contends there was no immediate prospect of executing the threat because, given (1) the time lapse between her statement and the threatened injury and (2) Jasmines behavior of reporting Rochelles misdeeds, Rochelle must have known Jasmine would report the threat to school authorities and prevent any harm from occurring. However, section 422 does not require that the defendant intend to harm the victim; it requires only that the defendant intend her statement to be taken as a threat. (& sect; 422 ["the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out"].) Therefore, whether Rochelle intended to carry out the threat is not material.
II. Miranda Warnings
Rochelle contends the court erred by admitting McColls testimony because the interview was conducted in violation of her Miranda rights. We review the courts findings of fact for substantial evidence and we review the courts ruling de novo. (People v. Clair (1992) 2 Cal.4th 629, 678.)
The trial court conducted an evidentiary hearing pursuant to Evidence Code section 402. At that hearing, McColl testified that she asked community resource officer, detective Kimberly Houry, to be present during the interview McColl planned to conduct with Rochelle because of the serious nature of the threat and because McColl might ask Houry what the next step should be. Prior to the interview, McColl advised Houry of the threats Rochelle allegedly made but did not discuss what she intended to ask Rochelle. During the interview, the office door was closed. The court ruled Miranda warnings were not required because Houry did not initiate or participate in the interview.
"The procedural safeguards set forth in Miranda come into play only where "custodial interrogation" is involved, and by "custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. " [Citation.] A private citizen is not required to advise another individual of his rights before questioning him. " (In re Eric J. (1979) 25 Cal.3d 522, 527 (Eric J.).) A school principal is a private citizen who need not give Miranda warnings prior to questioning a student. (In re Corey L. (1988) 203 Cal.App.3d 1020, 1024.) " Absent evidence of complicity on the part of law enforcement officials, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees. " (Eric J., supra, 25 Cal.3d at p. 527.) In Eric J., the court held Miranda warnings were unnecessary when an employer questioned an employee in the presence of a police officer because substantial evidence supported the courts direct and implied findings that the police officer did not question the employee and there was no complicity between the employer and the police officer. (Ibid.)
In this case, substantial evidence supports the court findings that Houry did not question Rochelle and McColl did not initiate the investigation at Hourys request, as well as the courts implied finding that Houry and McColl were not complicit in the investigation. We reject Rochelles contention that Houry and McColl were complicit in the investigation because Houry later conducted her own investigation of the incident. When two or more inferences can reasonably be deduced from the facts, we may not substitute our deductions for those of the factfinder. (In re Katrina C (1988) 201 Cal.App.3d 540, 547.) For these reasons, the court correctly ruled Miranda warnings were not necessary.
III. Failure to Designate the Conviction as a Felony or a Misdemeanor
Rochelle contends the case must be remanded to the juvenile court to exercise its discretion in determining whether the offense is a misdemeanor or a felony. When a juvenile defendant is found to have committed a wobbler — an offense that, in the case of an adult, would be punished alternatively as a misdemeanor or a felony — the court must declare whether the offense is a misdemeanor or a felony. (Welf. & Inst. Code, § 702 ; In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Criminal threat is a wobbler offense. (§ 422.)
Welfare and Institutions Code section 702 provides in part: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony."
Welfare and Institutions Code section 702 requires an express, formal finding by the juvenile court. (Manzy W., supra, 14 Cal.4th at p. 1204.) The following does not constitute full compliance with the statutory mandate: (1) a courts recitation of the felony charge made in the petition; (2) a courts commitment of the juvenile offender for a felony-length term; or (3) a minute order reciting that an offense is a felony. (In re Ricky H. (1981) 30 Cal.3d 176, 191; Manzy W., supra, 14 Cal.4th at p. 1204; In re Dennis C. (1980) 104 Cal.App.3d 16, 23; In re Jeffrey M. (1980) 110 Cal.App.3d 983, 985.)
However, the failure to make an express declaration does not compel an automatic remand. "[T]he record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. . . . The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Manzy W., supra, 14 Cal.4th at p. 1209.)
The People admit the court failed to make the express finding required but contend remand is unnecessary because Judge Isackson stated the offense is a felony and increased the restitution fine accordingly. We disagree. The record shows Judge Valentine was aware of his discretion to determine the nature of the offense but did not exercise that discretion. Although Judge Isackson stated that the offense is a felony, there is nothing in the record to indicate that Judge Isackson was aware of the need to exercise her discretion. For that reason, we remand to the juvenile court to exercise its discretion to determine whether the offense is a felony or a misdemeanor.
DISPOSITION
We remand to the juvenile court with directions to exercise its discretion to determine whether the criminal threat is a misdemeanor or a felony. The judgment is affirmed in all other respects.
WE CONCUR: McCONNELL, P. J. BENKE, J.