Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J07-00731
Margulies, J.
E.R. appeals a dispositional order of the Contra Costa County Juvenile Court, entered January 24, 2008, which continued him as a ward of that court under Welfare and Institutions Code section 602. He challenges the court’s denial of his motion to dismiss the underlying supplemental petition. As discussed below we find no prejudicial error and affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. Background
The district attorney initiated this proceeding in April 2007. Later that month the juvenile court sustained the original amended petition after finding true an allegation that the minor had committed a misdemeanor violation of Penal Code section 148. The court thus established the minor as its ward, and, at the conclusion of its dispositional hearing on May 3, placed him on home supervision.
A second, supplemental petition, filed December 3, 2007, alleged the minor had made a criminal threat—a misdemeanor violation of Penal Code section 422. Timothy Manly testified for the prosecution at the jurisdictional hearing held January 9, 2008. He stated that, on November 28, 2007, he had been working as a security officer at Antioch High School (AHS), a position he had held for 16 years. On that date, he was patrolling the school grounds in a golf cart and saw the minor across the street, about 15 yards away, walking past the school with another young man. Manly recognized the minor as a youth who had previously attended AHS. He said he had had “repeated contacts” with the minor during a period ending about 18 months prior to the incident—the period when the minor attended AHS. Manly knew the minor was about the same age as his own children—who still attended AHS—and he knew that when the minor had attended AHS in his freshman year his children and the minor had all played basketball together. Manly said he had referred the minor to the school’s administrative officials for disciplinary action “on several occasions” for conduct such as inappropriate dress and tardiness.
Manly testified that, when he looked over at the minor, the minor raised and pointed his right hand, as if firing a handgun at Manly, and made a “‘pop pop pop’” sound. Manly responded, “What?” He described the minor’s reply as follows: “My uncles know where you live. They know who you are. They’ll come up here and kill you. I’m going to have your kids killed. You better watch your kids. You better watch your kids.” Manly related that the minor afterwards cursed him, repeatedly saying, “[F]uck you,” as he continued walking down the street with his companion.
In the course of his testimony Manly related these statements three times in essentially the same words.
When asked if he had experienced fear, Manly stated he “absolutely” had. He said that “in the times that we live in anybody makes any threats they are going to have you killed or shot or have something happen to your kids I take that very seriously.” Manly testified that he reported the incident “[t]he next day” to Officer Bloxsom, an Antioch police officer who was assigned to AHS as its “resource” officer.
Following this testimony the prosecution rested its case, and the minor’s trial counsel made an oral motion to dismiss under section 701.1. She argued the prosecution had not proved all the elements of a criminal threat under Penal Code section 422, including the element requiring that the victim of the threat suffer “sustained fear.” The juvenile court denied the motion. After further evidence presented by the minor in his defense and by the prosecution in rebuttal, the juvenile court found the minor had committed the alleged misdemeanor violation of Penal Code section 422.
At the dispositional hearing held January 24, 2008, the juvenile court continued the minor as a ward of the court and placed him at home under “close supervision.” This appeal followed. (§ 800, subd. (a).)
II. Discussion
A. Introduction
Penal Code section 422 provides in relevant part that it is unlawful for any person “willfully [to] threaten[] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . 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 or for his or her immediate family’s safety.”
Of the elements the prosecution must prove to establish a criminal threat under Penal Code section 422, two are relevant to this appeal: the threat must have actually caused the person threatened to be in sustained fear, either for his or her own safety or for that of his or her immediate family; and the threatened person’s fear must have been reasonable under the circumstances. (See People v. Toledo (2001) 26 Cal.4th 221, 227–228; see also CALCRIM No. 1300.) The minor contends the juvenile court erred when it denied his motion to dismiss under section 701.1, because the prosecution failed to establish these two elements beyond a reasonable doubt.
A motion under section 701.1 challenges the sufficiency of the prosecution’s evidence at the close of its case-in-chief. In ruling on such a motion, a juvenile court must “weigh the evidence, evaluate the credibility of witnesses, and determine [whether] the case against the [minor] is ‘proved beyond a reasonable doubt.’ ” (In re Andre G. (1989) 210 Cal.App.3d 62, 66.) We in turn review the court’s ruling under the substantial evidence standard. (Id. at p. 65.) That is, we examine the record in the light most favorable to the judgment to determine whether there is substantial evidence such that “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Marshall (1977) 15 Cal.4th 1, 34, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, italics in Jackson.) In doing so, we assume all facts in support of the ruling that may reasonably be deduced from the evidence (In re Man J. (1983) 149 Cal.App.3d 475, 482), and we accept the juvenile court’s credibility determinations (see People v. Ochoa (1993) 6 Cal.4th 1199, 1206). We do not reassess the evidence in order to substitute our opinion for that of the juvenile court. (In re George T. (2004) 33 Cal.4th 620, 630–631.)
Our review of the evidence is limited to that which was before the juvenile court at the time it ruled on the motion under section 701.1. (See People v. Cole (2004) 33 Cal.4th 1158, 1213 [reviewing an analogous motion for acquittal under Pen. Code, § 1118.1, made at the close of the prosecution’s case-in-chief].)
B. Evidence That the Victim Suffered Actual Sustained Fear
The minor argues first that the evidence was insufficient to prove that Manly felt fear as a result of the threat. He reasons that, although Manly said that he experienced fear, there was no evidence to corroborate this testimony—such as evidence that Manly had exhibited physical symptoms indicative of fear. On this point the minor relies on analogy to facts discussed in prior decisions involving a charge under Penal Code section 422. For example, in People v. Gaut (2002) 95 Cal.App.4th 1425 (Gaut), there was evidence the victim had suffered fear because she “could not sleep or eat,” her work had been affected, and she had related to others that she felt as if she “would have a nervous breakdown.” (Id. at p. 1429.)
While additional, corroborating evidence of actual fear may have been useful in this case, it is nonetheless axiomatic that the testimony of a single, credible witness may be sufficient to prove a fact. (Evid. Code, § 411.) Here there was evidence giving rise to a reasonable inference that the minor, however irrationally, may have harbored some animosity towards Manly—that is, Manly had previously reported the minor several times for school infractions. Aside from the unequivocal threat to kill Manly and his children, there was also evidence that the minor knew Manly’s children, such that he could have identified them in order to carry out his threat. Under such circumstances we see nothing to preclude the juvenile court from giving full credit to Manly’s testimony that he experienced fear as a result of the minor’s threat.
The minor additionally contends that the evidence was insufficient to prove that Manly experienced sustained fear, because Manly did not state his fear “lasted for more than a few moments,” and the evidence indicated he took no immediate action to safeguard himself or his children, but rather “waited until the next day” before reporting the incident to police. On this point he again makes analogous reference to the facts in prior decisions, particularly those in In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.).
Actual fear is “sustained” for purposes of Penal Code section 422 when it is experienced for a period of time “beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) It is true that in Ricky T., the reviewing court regarded a one-day delay in contacting police as evidence that the victim, a high school teacher, did not experience anything more than transitory fear after a student threatened to “ ‘kick [his] ass.’ ” (Ricky T., supra, 87 Cal.Ap.4th at pp. 1136, 1139–1141.) The facts of Ricky T., however, showed not only that the words of the threat itself were equivocal in nature, but also that the threat was uttered by the student only as an “emotional response” to an accident, that the student obeyed the teacher’s immediate and “appropriate” directive to go to the school office, and that the student later apologized for his outburst. (Id. at pp. 1135–1137, 1140–1141.) Under such circumstances the additional fact that the teacher delayed for one day before contacting police might well be interpreted as conduct necessarily inconsistent with the teacher’s claim that he experienced fear beyond the moment when the student left to comply with the teacher’s directive. In this case, however, the minor made a death threat that was specific and unequivocal, and Manly was not a teacher who accidently embarrassed the minor in front of others, but an experienced school security officer who had done nothing to provoke an emotional outburst. In these circumstances the fact that Manly contacted police the day following the incident is more consistent with a deliberate act made after a period of sustained fear than it is with an action taken belatedly and superfluously after a momentary fear.
We conclude the prosecution’s case-in-chief presented substantial evidence permitting a rational trier of fact to find, beyond a reasonable doubt, that Manly experienced actual sustained fear as the result of the minor’s threat.
C. Evidence That the Victim’s Fear Was Reasonable
The minor urges the evidence was insufficient to show that any fear Manly may have experienced was reasonable under the circumstances. He reasons there was no evidence that either he or his “uncles” had a history of violent behavior, no evidence of any “prior hostile interactions” between Manly and himself, no evidence that he physically threatened Manly with a firearm or otherwise, and no evidence of any subsequent act indicating his intent to carry out his threat. In the minor’s view, the absence of such evidence, together with Manly’s experience as a high school security guard, rendered it objectively unreasonable for him to experience sustained fear as a result of the minor’s threat.
Again, the minor relies on prior decisions in which reviewing courts, examining the sufficiency of evidence underlying a conviction for criminal threat under Penal Code section 422, have considered evidence such as a defendant’s prior history of threats and violence, a defendant’s subsequent conduct in furtherance of executing a threat, and a defendant’s act of brandishing a weapon while making the threat. Such evidence may have significance, for example, when the threat itself lacks specificity or immediacy (Gaut, supra, 95 Cal.App.4th at pp. 1431–1432; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340–1342), or when the defendant is only briefly at large after making the threat (see Allen, supra, 33 Cal.App.4th 1149, 1156). But ultimately the decisions cited by the minor simply stand for the proposition that it is appropriate to consider all relevant circumstances when determining whether a particular incident constitutes a criminal threat under Penal Code section 422.
Here the relevant circumstances were that the minor may have harbored some animosity towards Manly based on prior encounters, and he threatened specifically and unequivocally to kill Manly and his children. Manly’s position and experience as a school security officer did not prevent him from reasonably experiencing sustained fear as a result. (See People v. Schnathorst (2004) 120 Cal.App.4th 1310, 1316.) We conclude there was substantial evidence presented in the prosecution’s case-in-chief permitting a rational trier of fact to find, beyond a reasonable doubt, that Manly experienced sustained fear that was objectively reasonable under the circumstances.
III. Disposition
The judgment is affirmed.
We concur: Marchiano, P.J., Swager, J.