Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Ct. No. JUV510373 Charles V. Stone, Judge.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Hill, J.
OPINION
The court found that appellant, A.S., was a person described in Welfare and Institutions Code section 602, after it sustained allegations charging him with four counts of making criminal threats (Pen. Code, § 422). On appeal, A.S. contends: 1) the court erred when it denied his motion to dismiss; and 2) the court erred in admitting certain evidence. We will find merit to A.S.’s first contention and reverse.
All further statutory references are to the Penal Code unless otherwise indicated.
In light of our decision to reverse based on A.S.’s claim that the court erred in denying his motion to dismiss, we will not discuss A.S.’s second contention. Also, the facts are limited to those presented during the prosecution case because the only issue we address involves the court’s denial of A.S.’s motion to dismiss.
FACTS
On November 1, 2007, A.M. testified at A.S.’s jurisdictional hearing that she attended a high school in Newman. A.S. was an acquaintance from class. A.M. had spoken with A.S. prior to October 1, 2007, including once when she told him she was Christian. She was aware A.S. was not Christian because he once showed her a satanic bible. A.S. once told A.M. that he realized they had different beliefs and she believed A.S. was offended by her Christian religion.
On October 1, 2007, in eighth period French class, A.M. was assigned to work with A.S. on a class project that lasted approximately 15 minutes and required them to read to each other. Prior to starting the assignment, A.S. sat in a seat that was not assigned to him and was told to move to his seat by the teacher, Ms. R. A.S. got angry and told A.M., “Little does she know that one day when she comes to class ... she won’t be there and it is because I killed her.” A.M. told him that was terrible. A.S. then pointed at other students, including U.G. and J.G., and said he was also going to kill them. A.M. asked why he was going to kill U.G. and J.G. since he did not even talk to them. A.S. replied that he was going to kill J.G. because he did not like the way she looked and U.G. because he was a “beaner” and a “dumb Mexican.” A.M. said that was terrible and wrong and asked why he would want to do that. A.S. stated, “What, you want to be on my list too?” A.M. felt she was now also on his list. Although A.S.’s comments scared her, she told A.S. she was not afraid of him because of what he said.
A.S. simulated a gun when he pointed at some of the students. When A.M. asked him why he was doing that, A.S. replied that he was “shooting them.”
J.G. and U.G. were seated on the other side of the room, approximately 15 to 20 feet away.
A.M. further testified that A.S. murmured when he threatened Ms. R. but otherwise spoke in a normal voice. He did not appear to be trying to get anyone else’s attention as he spoke to A.M. and he did not tell her to relay the threats to U.G., J.G., or Ms. R.
A.M. told her boyfriend about A.S.’s threats later that day. When she got home she told her mother about the threats and discussed them with her pastor. She called the police after reporting the threats to her father when he arrived home from work.
A.M.’s boyfriend, G. P., testified that A.M. told him about the threats at about 5:00 p.m. on the day in question. A.M. looked pale and sounded nervous and worried.
U.G. testified that he never had any problems with A.S. and thought A.S. was his friend. He became scared after finding out from police that A.S. wanted to hurt him.
J.G. testified she became scared when she heard from a police officer that A.S. threatened to harm her.
Ms. R. testified that on October 2, 2007, her boyfriend, a custodian at the school, called her as she was leaving home and told her the principal and superintendent were looking for her. He also asked if she knew A.S. and told her that A.S. had threatened to kill her. Ms. R. took the threat seriously and became afraid. She was nervous but went to school anyway because she was told that A.S. was in custody.
Newman Police Officer Jason Hutchins testified that a warrant search of A.S.’s house uncovered miscellaneous writings and a dagger in A.S.’s room and a handgun and two shotguns in his stepfather’s room. The court allowed the writings into evidence over defense counsel’s objections that they were irrelevant, inflammatory, and violated A.S.’s First Amendment rights.
At the conclusion of the prosecution’s case, the court denied defense counsel’s motion to dismiss all four counts of making criminal threats.
DISCUSSION
The Sufficiency of the Evidence Issue
A.S. contends the evidence was insufficient to sustain the court’s finding that he made a criminal threat against A.M. because his statement asking her if she wanted to be put on his list, lacked immediacy and was not unequivocal. He further contends that the evidence is insufficient to sustain the court’s finding that he made criminal threats against Ms. R., U.G. and J.G. because there was no evidence that he intended his threatening statements to be communicated to them. Thus, according to A.S., the court erred when it denied his motion to dismiss. We will find merit to these contentions.
Welfare and Institutions Code section 701.1 allows a juvenile to move for dismissal at the end of the prosecution’s case. This section “is substantially similar to Penal Code section 1118.… [I]n enacting [Welfare and Institutions Code section 701.1,] the Legislature intended the rules and procedures applicable to section 1118 to apply with equal force to juvenile proceedings. [Citation.] Consequently, the standard for review of the juvenile court’s denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition. [Citation.] In applying the substantial evidence rule, we must ‘assume in favor of [the court’s] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense. [Citations.] Accordingly, we may not set aside the trial court’s denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’ [Citations.]” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)
“Penal Code section 1118 provides: ‘In a case tried by the court without a jury, a jury having been waived, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.’”
“In order to sustain a finding that appellant made a terrorist threat in violation of [Penal Code] section 422, the People were required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that 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 person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety. [Citations.]” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136-1137 (Ricky T.)
“Section 422 provides, in pertinent 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, in writing, or by means of an electronic communication device, 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.’”
A.S.’s statements to A.M. clearly satisfied the first element with respect to U.G., J.G., and Ms. R. However, words alone are generally insufficient to establish the remaining elements of the offense. “[I]t is the circumstances under which the threat is made that give meaning to the actual words used.” (People v. Butler (2000) 85 Cal.App.4th 745, 753, 102; see also In re Ernest H. (2004) 125 Cal.App.4th 298, 310 [to determine whether words spoken may be construed as serious expression of intent to commit violent act, court must look at circumstances in which they are spoken].) The statute’s plain language requires that threats be evaluated by their context to determine whether the words spoken rise to the level of a criminal threat with penal consequences. “[J]ust as affirmative conduct and circumstances can show that a criminal threat was made, the absence of circumstances that would be expected to accompany a threat may serve to dispel the claim that a communication was a criminal threat. [Citation.]” (In re Ryan D. (2002) 100 Cal.App.4th at p. 860)
In Ricky T., upon returning to class after using the restroom, appellant found the classroom door locked and began to pound on it. The teacher opened the door outward striking appellant. Appellant became upset and angrily threatened the teacher stating “‘I’m going to get you.’” During a police interview appellant said that he also told the teacher, “‘I’m going to kick your ass’” but did not make any physical gestures or movements toward the teacher to further his threats. (Ricky T., supra, 87 Cal.App.4th at pp. 1135-1136.)
On appeal, after noting that threats are evaluated in their context, the Ricky T. court, in pertinent part, found that: 1) there were no circumstances to corroborate a true threat; 2) the statement that appellant was going to “get” the teacher was ambiguous and without prospect of execution”; and 3) his threat to “‘kick [the teacher’s] ass’” was made in response to being hit by the door. Thus, the court concluded that the evidence did not support a conclusion that the “‘threat’ was a true threat within the meaning of section 422.” (Ricky T., supra, 87 Cal.App.4th at p. 1139.)
Here, as in Ricky T., the circumstances surrounding A.S. threats do not establish a gravity of purpose or immediate prospect of execution as required by section 422. A.S. did not have any relationship with J.G., his relationship with A.M. was very limited, he was apparently friends with U.G, and his only apparent relationship with Ms. R. was that she was his French teacher. There was also no evidence that A.S. ever had any problems with any of the named victims or that he had ever threatened anyone or engaged in any violent conduct, and his threats were not accompanied by any physical violence. Further, as in Ricky T., A.S.’s threats were uttered in the aftermath of an incident that upset him, i.e., Ms. R telling him to get in his assigned seat.
Additionally, the threat to A.M. was ambiguous and like the juvenile’s threat in In re Ricky T. that he was going to “get” the teacher, it was at most “no more than a vague threat of retaliation without prospect of execution.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1138.)
Moreover, A.S. did not communicate his threats directly to J.G., U.G. or Ms. R. When a threat is not made directly to the person who is the object of the threat, the record must contain evidence that the threatener specifically intended that the threat be communicated to the person threatened. (In re Ryan D., supra, 100 Cal.App.4th 854, 861.) Here, even though A.S. could easily have approached J.G., U.G. or Ms. R. during class or afterwards and communicated the threats directly to them, he did not. He also did not tell A.M. that she should communicate the threats to any of the other victims. Nor is there any other evidence from which it can be inferred that he intended that A.M. communicate the threats for him.
Respondent cites A.M.’s testimony that A.S. was offended by her religion and his disagreement with her Christian faith to contend that this is evidence of prior friction between A.S. and A.M. that distinguishes the threat to A.M. from those made by the juvenile in In re Ricky T. We disagree. A.M. did not explain what she meant when she testified that A.S. was offended by her religion and, as noted earlier, the prosecution did not present any evidence that A.S. had ever made any threats to anyone or acted out violently for any reason, let alone because of a person’s religious beliefs.
Respondent also contends that it can be reasonably inferred A.S. intended that his threats be communicated to J.G., U.G., and Ms. R because he made them in a public classroom while the named victim’s were present and to a popular girl who had many friends. However, A.S. could easily have personally communicated his threats to the victims if he intended for them to receive the threats. Further, even though A.S. could have or should have anticipated that A.M. would communicate his threats to the other victims, this alone is insufficient to establish that he intended her to do so. (Cf. In re Ryan D., supra, 100 Cal.App.4th at p. 864.) Thus, even though A.S.’s conduct was wrong, immature, and reflected poor judgment, we conclude that A.S.’s threats did not violate section 422. It follows that the court erred when it denied A.S.’s motion to dismiss.
DISPOSITION
The judgment is reversed.