Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J229847. William Jefferson Powell IV, Judge.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Michael T. Murphy and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant J.B. (minor) was found by the juvenile court to have committed misdemeanor threatening of a school employee. (Pen. Code, § 71.) Minor was declared a ward of the court, and placed on probation in the custody of his father. Minor’s sole contention is that there was insufficient evidence that he violated section 71. We affirm.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
On November 5, 2009, minor was called to the office of the vice principal of his high school. Minor had been referred to the vice principal by a teacher due to the possibility that minor was not going to see the school nurse when he was claiming to. Minor was verbally combative with the vice principal as to the allegations against him. Minor was informed “he was unaccounted for. Truant.” He was also told he was going to receive a citation for loitering as a juvenile, which is an infraction of the local municipal code. He would have to appear in informal juvenile court and could be subject to fines and service obligations. Minor’s demeanor changed; “he was being more aggressive in his speech, as if [the vice principal] was pissing him off.” Minor said, “All you ever want to do is write people tickets” and, “Why don’t you suck my ass.” Minor was four feet away from the vice principal. The vice principal responded, “What was that?” Minor then stated, “I ought to just punch you in the face.” The vice principal responded, “Try it. You’ll see what happens.” Minor replied, “I just ought to fucking knock you out right now.” The vice principal thought that minor had the ability to carry out the threat.
The vice principal “knew how serious it was for [minor] to be threatening” him, told minor to sit down and be quiet, and intended to go get the principal. Minor turned to leave the office. The vice principal then told him, “if you walk out of this office, we’re calling the police. And they will be here to arrest you.” Minor exited the office. The vice principal went after minor, located him on campus, and observed him from 10 to 15 feet away while the police were called. Thirty seconds after making eye contact with the vice principal, minor ended his conversation with another student and approached the vice principal. Minor got about 18 inches away from the vice principal’s face and, while clenching his fist and huffing and puffing, said “I ought to just fucking knock you out right now.” The vice principal felt that minor had the ability to carry out the threat. The vice principal had previously feared being hit, but with minor it was “[m]ore so” than “ever before with any other student.”
The vice principal told minor he needed “to back away now.” Minor paused and then returned to the student with whom he had been speaking. The vice principal reminded minor that the police had been called, and that the police would come get him or minor could wait in the office. Minor slowly returned to the office.
The teacher who referred minor to the vice principal was also in the office when the first incident occurred. He recalled minor asserting that he had gone to the nurse’s office, the vice principal pointing out that minor had not signed the log, and then minor saying “suck my ass, ” to which the vice principal sarcastically responded, “Well, now you’re suspended as well.” Minor then mumbled something: “ ‘I’ll fuck you up if you come over here’ or ‘Beat the shit out of you.’ ” The teacher was shocked because minor is soft-spoken. The vice principal then said something similar to, “I’d like to see you try it.” The teacher remembered thinking the period was almost over and he had to get back to his class, and could not recall what happened next.
II. STANDARD OF REVIEW
We review claims of insufficiency of evidence by examining “ ‘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.’ ” (People v. Story (2009) 45 Cal.4th 1282, 1296.) The standard is the same even if circumstantial evidence was relied upon. (Ibid.) Because it is the trier of fact, and not the appellate court that must be convinced, “ ‘ “ ‘ “ ‘[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” ’ ” (Ibid.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See id. at p. 1299.) The scope of the evidence includes both the evidence in the record as well as “reasonable inferences to be drawn therefrom.” (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 89.) In deciding whether substantial evidence supports the decision of the trier of fact, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicting evidence and credibility issues is for the trier of fact to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient....” (Young, at p. 1181.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
III. DISCUSSION
Minor’s specific contentions are that there is insufficient evidence because his statements were not “criminal threats, as contemplated by section 71” and it did not reasonably appear that minor “would carry[]out his alleged threat and that [the vice principal] was actually in fear for his safety.” We disagree.
“Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense....” (§ 71.) Thus, “[t]he essential elements under Penal Code section 71 are: ‘ “(1) A threat to inflict an unlawful injury upon any person or property; (2) direct communication of the threat to a public officer or employee; (3) the intent to influence the performance of the officer or employee’s official duties; and (4) the apparent ability to carry out the threat.” ’ [Citations.]” (In re Ernesto H. (2004) 125 Cal.App.4th 298, 308.)
A. Evidence of Threats
“To determine whether the minor’s statement[s] to [the vice principal] may be construed as a threat to inflict an unlawful injury upon person or property, we must examine not only the words spoken but also the circumstances surrounding the communication. [Citations.] In doing so, we will keep in mind that Penal Code section 71 is designed to prohibit plausible or serious threats and ‘to ignore pranks, misunderstandings, and impossibilities.’ [Citation.] There is no case law that defines the nature of the injury to be threatened under Penal Code section 71. Unlike Penal Code section 422, the statute does not define the gravity of the harm threatened. It does require that the threatened injury be of a nature that would be taken seriously and could cause the recipient to act or refrain from acting to avoid the threatened harm.” (In re Ernesto H., supra, 125 Cal.App.4th at pp. 310–311.)
Minor characterizes his statements as not being threats, but merely angry outbursts. “ ‘[M]ere angry utterances or ranting soliloquies, however violent’ ” are not criminal threats in violation of section 422. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861 [a minor’s painting imagining his shooting of particular campus peace officer “was not so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an immediate prospect of the execution of a crime”] id. at p. 864.)
However, given the circumstances surrounding the communication of minor’s statements—the statements themselves, clenched fists, the perception that the statements could be carried out—the statements are sufficient evidence upon which the juvenile court could conclude that minor was threatening to inflict an unlawful injury on the vice principal.
B. Evidence of Apparent Ability to Execute the Threat
Minor acknowledges that the vice principal testified that he thought minor could carry out the threat and that he feared minor would hit him. However, minor contends, these statements were self-serving and not reasonable, credible, and of solid value. In minor’s view, the vice principal’s reaction “dispels the claim that the communication was a criminal threat” and, thus, “it is unreasonable to conclude that [minor] would carry[]out his angry expressions of what he ‘ought’ to do.” However, the mere “ ‘ “apparent ability to carry out the threat” ’ ” is sufficient (In re Ernesto H., supra, 125 Cal.App.4th at p. 308), as was the testimony of the vice principal—whose credibility we do not reweigh. (People v. Young, supra, 34 Cal.4th at p. 1181.) Moreover, minor was either four feet or a mere 18 inches away from the vice principal, and had his fists clenched while uttering the threatening statements. Accordingly, the evidence of minor’s apparent ability to carry out the threat was sufficient.
IV. DISPOSITION
The judgment is affirmed.
We concur: MILLER J., CODRINGTON J.