Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. VJ33699, Gary A. Polinsky, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Keith H. Borjon, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Esteban G. appeals from the juvenile court’s order declaring him a ward of the court and placing him home on probation, contending there was insufficient evidence to support the finding he made a criminal threat (Pen. Code, § 422). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While arguing in a loud voice with his granddaughter, John Symanski, Sr. grabbed the girl by the arm and pulled or pushed her from the porch outside their home into the kitchen, where the argument escalated. Symanski testified he heard a voice through the kitchen window yell, “Don’t touch her, I’ll fucking kill you.”
John Symanski, Jr., the girl’s uncle, was in the living room as the argument continued in the kitchen. He heard a voice yell, “Don’t hurt her, I’ll fucking kill you,” looked outside and saw Esteban G. standing on their property eight to 10 feet away from the kitchen window. Esteban G. yelled again, “Don’t touch her, I’ll fucking kill you.”
Both Symanskis went outside to their front porch. Esteban G. ran across the street, where he stood with another young man approximately 40 feet away. The two youths were holding cups. Symanski, Sr. yelled, “You got something to say, come over here and say it.” Esteban G. responded, “Fuck you, no”; and he and John Symanski, Sr. traded obscenities. Esteban G. then said, “Fuck you, I’ll kill you” and made signals with his hands that Symanski interpreted as a gang sign. Symanski, Sr. explained at the hearing Esteban G.’s demeanor changed at his point and he appeared “more gruff or more rougher.” Concerned for his own and his family’s safety, Symanski, Sr. went inside the house and called the sheriff’s station.
Symanski, Sr. went outside once again to wait for the sheriff’s deputies to arrive. He walked to the curb and asked Esteban G. and his companion why they were behaving in this manner. The second youth walked over to Symanski, Sr., identified himself and apologized for his friend, explaining, “He’s got a buzz.” Symanski, Sr. responded that was not an excuse for interfering with this business and that he wanted it to end.
The sheriff’s deputies arrived approximately 30 minutes after the call. Esteban G. was no longer at the scene. About one hour later Symanski, Sr. saw Esteban G. talking to someone at the apartment building across the street from his home; Esteban G. was pointing toward the house. Symanski, Sr. again became concerned and called the police. That night and the following night everyone in the Symanski household slept in the same room out of fear that someone might break into their house or commit a “drive by.”
Esteban G. was arrested on February 22, 2007, the day after the incident. On February 23, 2007 the People filed a one-count petition pursuant to Welfare and Institutions Code section 602 alleging Esteban G., then 16 years old, had made a criminal threat in violation of Penal Code section 422.
At a contested jurisdiction hearing both Symanski, Sr. and Symanski, Jr. testified concerning the incident as described above. Each man confirmed Esteban G. had yelled “I’ll kill you” at Symanski, Sr. while he was inside the kitchen with his granddaughter and again when the men were confronting the two youths from across the street. Symanski, Sr. described his fear at hearing the threat, seeing what he perceived to be a gang signal and subsequently noticing Esteban G. pointing toward his house while talking to another person.
Testifying in his own defense, Esteban G. said he saw Symanski, Sr. aggressively pick up the young girl on the porch and throw her inside the house. The girl was crying; Symanski, Sr. was screaming. Esteban G. also testified he had heard things falling inside the house and believed he needed to intervene to prevent Symanski, Sr. from hurting the girl. He walked across the street and yelled that, if Symanski, Sr. hit the girl again, he would call the police. Symanski, Sr. then came out in an aggressive manner, and Esteban G. ran back across the street. Esteban G. denied saying he would kill Symanski, Sr. Esteban G. also testified Symanski, Sr. came out by himself, not with another man (that is, not with Symanski, Jr.).
Steve L., the second youth with Esteban G. during the incident, testified for the defense and corroborated Esteban G.’s testimony he yelled at Symanski, Sr. that, if he hit the young girl again, he would call the police. Steve L. never heard Esteban G. say, “I’ll kill you.” Steve L., like Esteban G., denied that Symanski, Jr. had come out of the house with Symanski, Sr. or was present during that part of the incident.
Steve L. also testified at the hearing that he and Esteban G. had had a couple of shots of liquor.
At the conclusion of the People’s case, the court denied Esteban G.’s motion to dismiss the petition (Welf. & Inst. Code, § 701.1), but ruled his initial statement--“Don’t touch her, I’ll fucking kill you”--made while Symanski, Sr. was inside the house, “in itself does not give rise to the crime.” After hearing the balance of the evidence and argument from counsel, the juvenile court sustained the petition. The court expressly found “the statements of the minor and his witness to be incredible.” Esteban G. was declared a ward of the juvenile court and placed home on probation.
The juvenile court declared the offense to be a felony. (See Welf. & Inst. Code, § 702.) The court also set the maximum period of physical confinement at three years. However, because Esteban G. was placed home on probation, the court’s calculation of the maximum term of physical confinement is of no legal effect. (See In re Ali A. (2006) 139 Cal.App.4th 569, 572-574 [when minor placed home on probation, juvenile court not required to include maximum term of confinement in disposition order; maximum term of confinement contained in such an order is of no legal effect]; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1744 [“[o]nly when a court orders a minor removed from the physical custody of his parent or guardian is the court required to specify the maximum term the minor can be held in physical confinement”].)
DISCUSSION
1. Standard of Review
The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In either type of case 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--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
This standard applies to review of convictions under Penal Code section 422 for making a criminal threat when, as here, the defendant does not claim his or her words were constitutionally protected speech under the First Amendment. (In re George T. (2004) 33 Cal.4th 620, 630-634.)
In In re George T., supra, 33 Cal.4th at page 632, the Supreme Court held “a reviewing court should make an independent examination of the record in a [Penal Code] section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker’s free speech rights have not been infringed by a trier of fact’s determination that the communication at issue constitutes a criminal threat.” Esteban G. has not raised such a First Amendment defense.
2. The Evidence Supports the Juvenile Court’s Finding that Esteban G. Violated Penal Code Section 422
To establish the offense of making a criminal threat, the People must prove (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the victim threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the victim’s fear was reasonable. (Pen. Code, § 422; In re George T., supra, 33 Cal.4th at p. 630; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Although conceding his statement, “Fuck you, I’ll kill you” constitutes a threat, Esteban G. contends, when considered in context, there is no substantial evidence the threat was so unconditional, immediate and specific that it conveyed a gravity of purpose and immediate prospect of execution. Paraphrasing the analysis of the court in In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), Esteban G. argues his words, although perhaps rude, intemperate and insolent, were the result of an emotional response to Symanski, Sr.’s overbearing conduct and did not convey his specific intent to commit a crime resulting in death or great bodily injury. Esteban G. also maintains Symanski, Sr.’s testimony does not reasonably support the conclusion he experienced sustained fear after hearing Esteban G.’s threat to kill him.
Esteban G.’s reliance on Ricky T., supra, 87 Cal.App.4th 1132, is misplaced. In Ricky T. a 16-year-old boy left a classroom to use the restroom. When he returned,
he pounded on the locked door. The teacher opened the door outward and hit the student’s head. Angry, the student cursed and told the teacher, “‘I’m going to get you’” or “‘I’m going to kick your ass.’” The teacher felt physically threatened but conceded the student did not make a specific threat or engage in any other aggressive act. (Id. atpp. 1135, 1136, 1138.)
The Ricky T. court held, in context, the student’s outbursts were not serious, deliberate statements of purpose. The supposed threats were ambiguous, and there was no evidence a physical confrontation was imminent. (Ricky T., supra, 87 Cal.App.4th at pp. 1137-1138.) Additionally, the court found there was insufficient evidence the teacher was in sustained fear that was reasonable under the circumstances. (Id. at p. 1140.) The court concluded the boy’s “intemperate, rude, and insolent remarks” constituted an emotional reaction to an accident rather than a criminal threat. (Id. at pp. 1138, 1141.)
The evidence of Esteban G.’s threat, directed to Symanski, Sr., is significantly different and far more serious than the evidence evaluated in Ricky T. Esteban G.’s statement, “Fuck you, I’ll kill you” (the second such statement made by Esteban to Symanski, Sr.) was a specific threat of bodily harm and was neither vague nor ambiguous. In addition, according to Symanski, Sr.’s testimony, which was credited by the juvenile court, Esteban G. made hand signals that Symanski, Sr. understood to be gang signs, adding to the gravity of the threat.
As to the issue whether Esteban G.’s threat reasonably caused Symanski, Sr. to be in sustained fear for his own safety or for his immediate family’s safety, “sustained fear” has been defined by case law as “a period of time that extends beyond what is momentary, fleeting, or transitory.” (E.g., People v. Allen (1995) 33 Cal.App.4th 1149, 1156; see Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 1300.) Esteban G. challenges the People’s evidence on this point by noting Symanski, Sr. is much larger than he is and by characterizing Symanski, Sr.’s initial actions after coming out of the house as aggressive and overbearing. Although it is certainly correct that events occurring before the threat provide a context in which to evaluate whether the victim was, in fact, frightened and whether that fear was reasonably sustained (e.g., Allen, at pp. 1151-1156 [victim’s knowledge of defendant’s prior conduct toward her daughter relevant to assess whether evidence supported finding that victim’s fear was reasonably sustained]), courts also look to the victim’s conduct after the threat to determine if the victim’s initial fear was sustained for more than a momentary or fleeting period. (E.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1214-1218, 1222 [rejecting claim, inter alia, victim not in sustained fear; evidence established victim had friend stay at her house for protection and reported threats the morning after they were made]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337-1338, 1342 [affirming conviction; victim called police 20 minutes after defendant threatened her with retaliation for testifying against his brother, a fellow gang member; gang member parked outside her house and honked horn; and victim learned other gang members were looking for her]; People v. Solis (2001) 90 Cal.App.4th 1002, 1008-1010, 1011-1016, 1024 [although trial court erred in failing to define “sustained fear,” error harmless when evidence showed victims still afraid an hour after threats after learning defendant had firebombed their apartment].)
Here, the evidence established Symanski, Sr. called the police immediately after the threat was made and then called them a second time when Esteban G., after initially fleeing the scene, returned an hour later and was observed standing across the street pointing at the Symanski house. Moreover, for two nights following the threat, everyone in the house slept in the same room out of fear someone might break in or otherwise attack them. This evidence, viewed in the light most favorable to the judgment, reasonably justifies the juvenile court’s conclusion that Esteban G.’s threat resulted in Symanski, Sr. being in fear for more than a “momentary, fleeting or transitory” period of time.
In sum, there was ample evidence that Esteban G. intended his statement to be taken as a threat and that Symanski, Sr. reasonably believed Esteban G. posed an actual threat and feared for his safety and the safety of his family. The evidence, therefore, is sufficient to support the juvenile court’s findings.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: WOODS, J., ZELON, J.